410
1 UNITED STATES DISTRICT COURT
DISTRICT OF COLUMBIA
2
-------------------------x
3 CARA LESLIE ALEXANDER :
et al., :
4 :
Plaintiffs :
5 :
v. : Civil No. 96-2123 (RCL)
6 :
FEDERAL BUREAU OF :
7 INVESTIGATION et al., :
:
8 Defendants. : Volume 2
-------------------------x
9
10 Washington, D.C.
11 Monday, May 24, 1998
12 Continued deposition of
13 KENNETH BACON
14 a witness, called for examination by counsel
15 for Plaintiffs pursuant to notice and
16 agreement of counsel, beginning at
17 approximately 10:08 a.m. at the Offices of
18 Judicial Watch, Inc., 501 School Street S.W.,
19 Washington, D.C., before Joan V. Cain, notary
20 public in and for the District of Columbia,
21 when were present on behalf on the respective
22 parties:
411
1 APPEARANCES:
2 On behalf of Plaintiffs:
3 LARRY KLAYMAN, ESQUIRE
ROBERT CORRY, ESQUIRE
4 ALLAN FAVISH, ESQUIRE
Judicial Watch, Inc.
5 501 School Street, S.W., Suite 725
Washington, D.C. 20024
6 (202) 646-5172
7 On behalf of Defendants Federal Bureau of
Investigation and Executive
8 Office of the President:
9 JULIA FAYNGOLD COVEY, ESQUIRE
Federal Programs Branch
10 Civil Division
United States Department of Justice
11 901 E Street N.W., 9th Floor
Washington, D.C. 20004
12 (202) 514-5302
13 On behalf of Defendant Department of Defense:
14 ANNE L. WEISMANN, ESQUIRE
DAVID T. ZARING, ESQUIRE
15 Federal Programs Branch
Civil Division
16 United States Department of Justice
901 E Street N.W., Room 1034
17 Washington, D.C. 20530
(202) 514-3395
18
BRAD WIEGMANN, ESQUIRE
19 Office of General Counsel
United States Department of Defense 5
20 1600 Defense Pentagon, Room 3C975
Washington, D.C. 20301-1600
21 (703) 695-3392
22
412
1 APPEARANCES (CONT'D):
2 On behalf of Defendant Hillary Rodham Clinton:
3 PAUL B. GAFFNEY, ESQUIRE
Williams & Connolly
4 725 Twelfth Street, N.W.
Washington, D.C. 20005
5 (202) 434-5175
6 On behalf of Deponent:
7 WILLIAM J. MURPHY, ESQUIRE
HALLIE A. MORELAND, ESQUIRE
8 Murphy & Shaffer
100 Light Street, 9th Floor
9 Baltimore, Maryland 21202-1019
(410) 783-7000
10
11 * * * * *
12
13
14
15
16
17
18
19
20
21
22
413
1 C O N T E N T S
2 EXAMINATION BY: PAGE
3 Counsel for Plaintiffs 416
4
BACON DEPOSITION EXHIBITS:
5
No. 1 - Notice of Deposition, 416
6 Attachments
7 No. 2 - Fax, Connolly to Klayman, 424
Attachments
8
No. 3 - Fax, Zaring to Klayman, 425
9 Attachment
10 No. 4 - Memorandum and Order 429
11 No. 5 - Letter, Zaring to Klayman, 437
Attachments
12
No. 6 - Letter, Quinlivan to Klayman, 488
13 Attachments
14 No. 7 - CNN Late Edition Transcript 497
15 No. 8 - New York Post Commentary 540
16 No. 9 - Message, Barr to Cohen, 561
Attachments
17
No. 10 - Letter, Murphy to Drudge 591
18
No. 11 - Letter, Murphy to Fallon, 594
19 Attachment
20 No. 12 - Letter, Murphy to Crane, 599
Attachments
21
22
* * * * *
414
1 P R O C E E D I N G S
2 THE VIDEOGRAPHER: Good morning.
3 This is the continuing deposition of Kenneth
4 Bacon, taken by the counsel for the
5 Plaintiffs in the matter of Cara Leslie
6 Alexander et al. v. Federal Bureau of
7 Investigation, et al., Case No. 96-2123
8 (RCL), held on this date, May 24, 1999, and
9 at the time indicated on the video screen,
10 which is 10:08 a.m.
11 Will counsel now introduce
12 themselves?
13 MR. KLAYMAN: Larry Klayman,
14 chairman and general counsel of Judicial
15 Watch.
16 MR. FITTON: Tom Fitton, President
17 Judicial Watch.
18 MR. CORRY: Robert Corry, Judicial
19 Watch.
20 MR. MURPHY: William J. Murphy; I
21 represent Mr. Bacon in his personal capacity.
22 MS. MORELAND: Hallie Moreland on
415
1 behalf of Mr. Bacon in his personal capacity.
2 MS. WEISMANN: Anne Weismann on
3 behalf of the Department of Defense and
4 Mr. Bacon in his official capacity.
5 MR. ZARING: David Zaring on behalf
6 of Mr. Bacon in his official capacity in the
7 Department of Defense.
8 MR. WIEGMANN: Brad Wiegmann with
9 Department of Defense.
10 MS. COVEY: Julia Fayngold Covey on
11 behalf of the Executive Office of the
12 President and the Federal Bureau of
13 Investigation.
14 MR. GAFFNEY: Paul Gaffney,
15 Williams & Connolly, on behalf of the First
16 Lady.
17 Whereupon,
18 KENNETH BACON
19 was recalled as a witness and, having been
20 previously duly sworn, was examined and
21 testified as follows:
22 EXAMINATION BY COUNSEL FOR PLAINTIFFS
416
1 CONTINUED
2 BY MR. KLAYMAN:
3 Q Mr. Bacon, how are you today?
4 A I'm fine, thank you.
5 MR. KLAYMAN: I'll show you what
6 I'll ask the court reporter to mark as
7 Exhibit 1 to this reconvened deposition.
8 (Bacon Deposition Exhibit No. 1
9 was marked for identification.)
10 BY MR. KLAYMAN:
11 Q Exhibit 1 is Plaintiffs' Notice of
12 Deposition of Kenneth Bacon. Attached to
13 Exhibit 1 is a subpoena duces tecum requiring
14 your presence here today on May 24, 1999, at
15 10:00 a.m. This subpoena duces tecum
16 requests the production of certain documents.
17 Have you seen Exhibit 1 before,
18 Mr. Bacon?
19 A Yes, I have.
20 Q And when did you see it?
21 A Wait a minute.
22 MR. MURPHY: You saw the subpoena,
417
1 actually.
2 BY MR. KLAYMAN:
3 Q Roughly.
4 A There are parts of this I have not
5 seen.
6 Q Which parts have you seen and when
7 did you see them, and which parts have you
8 not seen?
9 A I believe I saw the subpoena the
10 first time on Thursday, and I have not seen
11 Exhibit 1 previously.
12 Q You're referring to Exhibit A, the
13 document request; is that what you're talking
14 about?
15 A Exhibit 1. Does yours not have
16 this piece of paper attached to it?
17 Q Yes, it does. Did you see the
18 request for documents, which is set forth at
19 Exhibit A?
20 A Yes.
21 Q And did you look for the documents
22 which were requested in Exhibit A?
418
1 A Yes.
2 Q And where did you look for those
3 documents?
4 A I looked in my computer, in my
5 files, and in my notebooks.
6 Q Did anyone assist you in the search
7 for those documents?
8 A Not me personally, no, but I assume
9 that other people in my office were doing the
10 same thing with their files.
11 Q When you say you assumed that other
12 people in your office were doing the same
13 things with their files, what do you mean by
14 that?
15 A I mean that the subpoena was handed
16 out to all the likely characters, and they
17 were told to comply with the subpoena.
18 Q Who handed the subpoena out to the
19 likely characters?
20 A It was handed out by a woman named
21 Pat Bursell, who is the director of division
22 of management in the office of public
419
1 affairs.
2 Q When this was given to Mr. Bursell,
3 who gave it to her?
4 A You're asking me a level of detail
5 here that I sort of can't answer. I assume
6 the subpoena went to the lawyers at the
7 defense department who handed it down to the
8 -- to Mrs. Bursell, who handed it out to me
9 and to my secretary and to others in my
10 office.
11 Q Did you consult with any counsel,
12 any lawyers, in terms of responding to the
13 subpoena?
14 A I did not.
15 Q So you really don't know how the
16 subpoena was given to Ms. Bursell, and you
17 don't really know what instructions were
18 given to Ms. Bursell in terms of looking for
19 the documents?
20 A You are repeating what I told you,
21 yes.
22 Q So in fact you don't know whether
420
1 the documents were ever searched for? You
2 don't have any personal knowledge of that?
3 A I was given a subpoena and asked to
4 search for documents. I did that.
5 Q You know in terms of your own
6 search, correct?
7 A That's all I can attest to.
8 Q And did you receive any
9 instructions on how to search for the
10 documents?
11 A I did not.
12 Q How were you able to determine what
13 types of documents to search for and where to
14 search?
15 A I put the word "Tripp" into my
16 computer and printed out all the documents
17 that came out, and then I checked those
18 documents against a physical collection of
19 documents that I keep -- these were primarily
20 memos -- to make sure that the documents I
21 had had all the relevant attachments. I, as
22 I said, checked several files that I kept
421
1 near my desk and also I checked my notebooks.
2 This is approximately what I did a year ago
3 before I appeared here.
4 Q When you say notebooks, are you
5 referring to traditional notebooks or
6 notebook computers?
7 A The same four-by-six notebooks we
8 discussed at great length a year ago.
9 Q Are there any documents since the
10 date you were last deposed and today that
11 have been deleted from your hard drive or
12 other computer files?
13 A No, not that I deleted.
14 Q Are there documents that others
15 have deleted?
16 A I don't believe so.
17 Q I take it there's a Department of
18 Defense backup system for your computer?
19 A You would have to talk to computer
20 experts to find that.
21 Q Did anyone search that backup
22 system?
422
1 A I do not know.
2 Q But you didn't?
3 A I did not. I don't even know if
4 there is one.
5 Q Now, in response to the subpoena
6 are you producing any documents today?
7 A I have had handed over the
8 documents to the Department of Defense, and
9 if they are being produced they should have
10 been produced or will be.
11 MR. MURPHY: In addition, we're
12 producing, Mr. Klayman, some personal matters
13 that are responsive to the subpoena which
14 Mr. Bacon and I have discussed, and I have a
15 package for you. These are documents that
16 have been previously produced to the grand
17 jury that was investigating this matter and
18 one additional document that was generated
19 after the grand jury investigation was over.
20 MS. WEISMANN: And these are
21 documents that are produced on behalf of
22 Mr. Bacon in his official capacity.
423
1 MR. KLAYMAN: I take it that the
2 Department of Defense and Mr. Bacon
3 personally already have copies of both of
4 these?
5 MR. MURPHY: Yes.
6 MR. KLAYMAN: So, if we make other
7 copies, we only need to make them for
8 Mr. Gaffney and ourselves?
9 MS. WEISMANN: That's correct.
10 MR. KLAYMAN: Maybe Mr. Gaffney
11 already has them.
12 MR. GAFFNEY: No.
13 MR. KLAYMAN: If I make two copies
14 of this will that be sufficient? Anyone else
15 need copies?
16 I'll show you what I'll ask the
17 court reporter to mark as Exhibit 2, which is
18 a document of May 21, 1999, from the law firm
19 of Murphy & Shaffer in Baltimore to Larry
20 Klayman which attaches an objection to
21 subpoena duces tecum lodged on your behalf.
22 (Bacon Deposition Exhibit No. 2
424
1 was marked for identification.)
2 BY MR. KLAYMAN:
3 Q Have you ever seen this document
4 before, Mr. Bacon?
5 A I saw it in draft.
6 Q And when did you see it in draft,
7 roughly speaking?
8 A A week or so ago.
9 Q Is the document that I've shown to
10 you your final version of your objection
11 filed by your counsel?
12 A I believe so. I'm not sure I saw
13 the final version, but it appears to be close
14 to the draft, yes.
15 Q Take an opportunity to review it
16 and tell me if it's accurate or whether there
17 are other documents that are not being
18 produced that you know of.
19 MR. KLAYMAN: Could we just take
20 one minute?
21 THE VIDEOGRAPHER: Going off video
22 record at 10:20.
425
1 (Recess)
2 THE VIDEOGRAPHER: We're back on
3 video record at 10:21.
4 THE WITNESS: I'm not aware of any
5 documents that have been withheld other than
6 those specified in here, and I think this is
7 a very narrow group.
8 BY MR. KLAYMAN:
9 Q I'm sorry. I didn't hear you.
10 A I said I'm not aware of any
11 documents that have been withheld, any other
12 documents.
13 MR. KLAYMAN: I'll show you what
14 I'll ask the court reporter to mark as
15 Exhibit 3.
16 (Bacon Deposition Exhibit No. 3
17 was marked for identification.)
18 BY MR. KLAYMAN:
19 Q Exhibit 3 is a letter sent by
20 Mr. David T. Zaring of the Department of
21 Justice. It was faxed to our office I
22 believe it was last Friday, May 21, 1999, the
426
1 date of the letter, and it lists certain
2 objections on your behalf by virtue of your
3 professional capacity. Have you seen this
4 before?
5 A No.
6 Q Take an opportunity and review it.
7 Does this refresh your recollection as to
8 whether you've seen it?
9 A It refreshes my -- yes, it does
10 refresh it.
11 Q That you've seen it?
12 A No.
13 Q That you haven't seen it?
14 A No, I've not seen it.
15 Q Did anyone discuss with you from
16 the Department of Justice the objections
17 raised in this letter quite apart from the
18 letter itself?
19 A No.
20 Q Mr. Bacon, the first question I'm
21 going to ask you is did you discuss with
22 Secretary Cohen the legality or
427
1 appropriateness of the release of Tripp's
2 information? I'm talking about Linda Tripp,
3 about the investigation of how the release
4 occurred or whether Secretary Cohen should
5 publicly name only Clifford Bernath as the
6 person who released the information.
7 A No, I did not.
8 Q At any time?
9 MR. MURPHY: Do you want that read
10 back? It was a long question.
11 THE WITNESS: No. No, I
12 understand.
13 BY MR. KLAYMAN:
14 Q Let me break down the question
15 because that was compound. I'm reading to
16 you from the order of the judge of March 31,
17 1999. Have you seen that order?
18 A I have. My understanding was that
19 there were 22 questions listed in the order.
20 He denied a number of those questions,
21 perhaps nine of the questions, and that we're
22 supposed to limit our questioning here to
428
1 thirteen, and I'm prepared to answer those
2 questions.
3 You seem to be scrambling the order
4 of the questions or at least asking them in a
5 different format. It might be wise from the
6 efficiency standpoint to start at the
7 beginning and just march through the
8 questions since they are in somewhat of a
9 chronological order as I recall.
10 Q I'll be happy to show you a copy of
11 the order, but I have asked the questions
12 exactly as the judge has phrased them in his
13 order. I'm not going to ask them in the
14 judge's order because I think this will
15 facilitate the flow at the deposition.
16 MR. MURPHY: Could you just
17 enlighten us, Mr. Klayman --
18 MR. KLAYMAN: I'll be happy to give
19 you a copy of the order so we can just read
20 them.
21 MR. MURPHY: I have the order. I'm
22 just asking which one --
429
1 MR. KLAYMAN: This isn't a trick
2 question.
3 (Bacon Deposition Exhibit No. 4
4 was marked for identification.)
5 BY MR. KLAYMAN:
6 Q So what I'm referring to
7 initially --
8 A You started with question three.
9 Q I'm starting with question number
10 three.
11 A Right.
12 Q Let me break it down for you. Did
13 Bacon, that's you --
14 A But I had requested that you start
15 with question one.
16 Q I prefer to start with question
17 three.
18 A Okay.
19 Q We will get to question one, but
20 let's start with three. Did Bacon discuss
21 with Secretary Cohen the legality or
22 appropriateness of the release of Linda
430
1 Tripp's information from her Pentagon file?
2 What is the answer to that question?
3 A On March 13, I gave Secretary Cohen
4 a memo in preparation for an interview on
5 March 15 with Wolf Blitzer of CNN. In that
6 memorandum, which I discussed with him
7 briefly, I stated that he could get asked a
8 question about Linda Tripp in light of an
9 article that was expected to run in The New
10 Yorker and be out over the weekend, and I
11 recommended that in response to a question on
12 that article that he say that the issue was
13 -- that there were established procedures for
14 dealing with the issue and that the
15 administration would look into the facts.
16 He appeared on the program and, as
17 I recall, basically gave that answer, and
18 that answer, of course, was reported verbatim
19 in the deposition of last year, my deposition
20 here last year.
21 Again, in April of 1998 he was to
22 appear on a second program, Fox Morning News.
431
1 I believe the date was the 26th of April in
2 1998. I gave him another memo prior to that
3 that contained some information, a
4 considerable amount of information, actually,
5 on the background of the Linda Tripp case,
6 although I must say that Tripp was dealt with
7 only glancing in this memo, most of which
8 dealt with other issues, including Kosovo and
9 base closure, which was the main purpose he
10 was going on to the program, the main topic
11 he was going to discuss.
12 I did not discuss prior to that
13 program the legality or appropriateness of
14 the release of Tripp's information or the
15 investigation of how the release occurred.
16 Q And you've done so at no time?
17 A I didn't say that. I said prior to
18 that program I did not discuss that, nor had
19 I discussed prior to that program in April
20 whether Secretary Cohen should publicly name
21 only Bernath as the person who released the
22 information.
432
1 I had no discussion on any of those
2 points with the Secretary prior to April 26
3 or whatever the date was, 1998, before the
4 Fox News program.
5 Q Now, you say there were two
6 memoranda that were provided to Secretary
7 Cohen. Did I hear that correctly?
8 A You heard that correctly.
9 Q Have you produced both of those
10 memoranda?
11 A I've produced them to the
12 Department of Defense.
13 MR. KLAYMAN: Have those memoranda
14 been produced to us?
15 MS. WEISMANN: You have the
16 entirety of the documents we produced in the
17 past supplemented by our document production
18 today.
19 THE WITNESS: I believe these were
20 produced last year.
21 MR. KLAYMAN: We have never seen
22 those two memoranda. Do you want to take a
433
1 break and perhaps we can even give you access
2 to our documents, if you can tell us which
3 you think they may be, but we've never seen
4 them.
5 The way we can do this, we will
6 give to Mr. Bacon a copy of the documents
7 that have been produced, both by the
8 Department of Defense on your behalf and
9 documents that have been produced in your
10 individual personal capacity. If those two
11 memoranda are contained in there, if you
12 could find them.
13 MS. WEISMANN: Mr. Klayman, I think
14 this might be easier. It's my understanding
15 that for those two memoranda, which were
16 initially accounted for in the initial
17 subpoena to the Department of Defense, we
18 successfully asserted the deliberative
19 process privilege and were upheld by the
20 court.
21 MR. KLAYMAN: Well, then, we may
22 need to get a clarification from the court
434
1 because obviously the court would not have
2 allowed us to get into it orally if the
3 memoranda themselves were covered by the same
4 privilege which you asserted that was in fact
5 rejected by the court in allowing us to take
6 the testimony here today. Maybe we can come
7 to an agreement on that that we can see those
8 two memoranda.
9 MS. WEISMANN: We successfully
10 prevailed. The court's order is clear on the
11 scope of this deposition.
12 MR. KLAYMAN: Well, I'm going to
13 ask you right now whether we could consult on
14 a Rule 108 basis and see if we can resolve
15 the differences before having to move the
16 court.
17 MS. WEISMANN: When this deposition
18 concludes, we'd be happy to consult.
19 MR. KLAYMAN: Recognizing that what
20 we're trying to do right now is to avoid
21 having Mr. Bacon come back a third time,
22 we're trying to be accommodating.
435
1 MS. WEISMANN: Mr. Klayman, we
2 asserted a deliberative process privilege
3 over these two documents, and the court
4 upheld our privilege assertion, so it's not
5 clear to me what further there is to discuss.
6 Aside from the documents themselves, you're
7 free to ask Mr. Bacon questions that are
8 consistent with the court's order.
9 MR. KLAYMAN: Do you know for a
10 fact, Ms. Weismann, that those two memoranda
11 were subject to deliberative process claims?
12 MS. WEISMANN: That's my
13 understanding, Mr. Klayman.
14 MR. KLAYMAN: Your understanding or
15 have you actually consulted with the list of
16 documents that you claimed? I understand
17 you're making that statement.
18 MS. WEISMANN: That's correct and
19 I'm not here under oath, Mr. Klayman. I
20 didn't come here prepared to answer your
21 questions. I'm giving you my best
22 understanding today that for those two memos
436
1 we asserted a privilege and the court has
2 upheld our assertion.
3 MR. KLAYMAN: I'm not trying to be
4 difficult. I'm just trying to in fact move
5 the process along because, obviously, if
6 we're getting testimony on a matter that has
7 underlying documents, then that is
8 diametrically opposed and perhaps we can try
9 to work it out.
10 MS. WEISMANN: We haven't asserted
11 any privilege today on the substance of any
12 testimony that he's offered or any of your
13 questions, so I would suggest that perhaps
14 you should proceed with your questions, and
15 if there's a need after that to have the 108
16 conference we'll be happy to consult with
17 you.
18 MR. KLAYMAN: Well, I'm trying to
19 be agreeable to avoid having Mr. Bacon come
20 back again. Maybe we can do this at a break.
21 I'll show you what I'll ask the
22 court reporter to mark as Exhibit 5. These
437
1 are documents that were produced by
2 Mr. Zaring of the Department of Justice on
3 your behalf professionally, Mr. Bacon, on May
4 3, 1999, as well as the entire Department of
5 Defense.
6 (Bacon Deposition Exhibit No. 5
7 was marked for identification.)
8 BY MR. KLAYMAN:
9 Q Showing you Exhibit 5, it's a
10 composite exhibit, and it includes all the
11 documents produced on that date, May 3, 1999,
12 by the Department of Justice on behalf of the
13 Department of Defense. Turn to the third
14 page. The second page is a blank white page,
15 and the document I'm referring to says,
16 Friday, the third, 1998, and reading down
17 there are portions that are blacked out.
18 Below it says, "Tripp's arrest record is
19 likely to become an issue. This is an area
20 that the Secretary of Defense are not well
21 prepared to deal with." Do you see that?
22 A I do.
438
1 Q Do you know who wrote that entry?
2 A I do not.
3 Q Do you have any idea as to whose
4 calendars these are?
5 A I do not.
6 Q Are you aware of that Clifford
7 Bernath kept calendars?
8 A Yes, I am.
9 Q Do you know that Clifford Bernath
10 recorded events leading up to Linda Tripp's
11 Pentagon file information?
12 A Not with any specificity. I know
13 we kept fairly detailed calendars on many
14 things.
15 Q But you know generally?
16 A Yes.
17 Q Does that refresh your recollection
18 as to whether this entry was made by Clifford
19 Bernath?
20 A It does not. I've never seen these
21 before.
22 Q Do you know if anyone else kept
439
1 calendars that mentioned the whole release
2 issue?
3 A I do not.
4 Q When it says Tripp's arrest record
5 is likely to become an issue, this was
6 written on Friday --
7 A I believe it's Friday, the third
8 month, 13th day, 1998.
9 Q March 13, 1998. That was the date,
10 was it not, Mr. Bacon, that you instructed
11 Mr. Bernath to obtain the information about
12 Linda Tripp from her Pentagon file and
13 release it to Jane Mayer?
14 MR. MURPHY: Objection.
15 THE WITNESS: That is the date that
16 we have discussed at great length a year ago,
17 yes, in which the release was made.
18 BY MR. KLAYMAN:
19 Q Now, do you know what is meant by,
20 "This is an area that Secretary of Defense
21 are not well prepared to deal with"?
22 A I do not. I haven't seen that
440
1 before.
2 Q Did you ever tell Clifford Bernath
3 or anyone else not to tell the Secretary of
4 Defense Cohen about what was happening
5 concerning Linda Tripp's release of Pentagon
6 file information?
7 A I did not.
8 Q Do you know of anyone who did?
9 A I do not.
10 Q In and around that date, March 13,
11 1998, were there any discussions inside the
12 Department of Defense that this is an issue
13 that Secretary Defense Cohen was not well
14 prepared to do deal with?
15 A Not that I'm aware of, no.
16 Q You're not sure?
17 A The Department of Defense has
18 23,000 people in the Pentagon alone, and I
19 can't speak for every one of them, but I was
20 not party to any discussions that would have
21 led to this conclusion.
22 Q Are you aware of anyone else taking
441
1 part in any such discussions?
2 A I'm not.
3 Q Are you aware of anything in
4 writing to that effect?
5 A I am not.
6 Q Was there any discussion that the
7 Secretary of Defense should not know about
8 the release of Linda Tripp's Pentagon file
9 information because it was being ordered by
10 The White House?
11 A There was absolutely not, and it
12 was not ordered by The White House.
13 Q Now, you just referenced two
14 memoranda where you provided information to
15 Secretary Cohen. Correct me if I'm wrong.
16 It's your testimony that you were not
17 providing information about the legality or
18 appropriateness of the release of Tripp's
19 information in those two memoranda?
20 A That is true.
21 Q Was there any time that you
22 discussed the legality or appropriateness of
442
1 the release of Linda Tripp's information from
2 her Pentagon file with Secretary Cohen?
3 A I can only recall two times.
4 Q And when was that?
5 A One was on April 26, I believe,
6 1988 --
7 Q 1998, you mean?
8 A 1998. Did I say '88?
9 Q Yes.
10 A When -- whatever the date was of
11 the Fox interview, and I believe that was
12 April 26, 1998, and the second was sometime
13 thereafter in May.
14 Q And correct me if I'm wrong. You
15 testified that you discussed this after his
16 appearance on Fox as opposed to before?
17 A That is correct.
18 Q And where did you discuss this with
19 him after his appearance on Fox?
20 A In an elevator.
21 Q In an elevator at the Fox building?
22 A At the Fox building.
443
1 Q And that's at 400 North Capitol
2 Street?
3 A I believe so.
4 Q As you were going down or up the
5 elevator?
6 A Down because it was after the
7 appearance.
8 Q Was anyone in the elevator with
9 you?
10 A I'm sure there was a security
11 person, probably an elevator operator, and
12 there may have been one other person. There
13 could have also been a military assistant
14 there.
15 Q Who would the military assistant
16 be?
17 A I don't recall.
18 Q Who would he likely have been given
19 the fact that you were over at Fox that day?
20 A It was probably a woman, and it was
21 probably either Captain Loewer or Captain
22 Kleman.
444
1 Q Klayman?
2 A Kleman, but I don't -- it could
3 have been somebody else entirely.
4 Q Loewer, what is her rank?
5 A She is a Navy captain.
6 Q And what's her position?
7 A She is now the commander of a ship
8 in the Pacific Ocean.
9 Q When was she transferred to the
10 Pacific Ocean?
11 A I think she was transferred last
12 fall, perhaps.
13 Q Did you order the transfer?
14 A I did not. I don't have authority
15 to order military transfers.
16 Q Did you recommend the transfer?
17 A I did not.
18 Q Did she work in your office?
19 A She did not.
20 Q Why was she there with you and
21 Secretary Cohen?
22 A I don't --
445
1 Q If she was, why was she there?
2 A Come to think of it, I don't
3 believe she was.
4 Q But if she was, what would have
5 been about her job at the time that would
6 have required her to go to the Fox studios
7 and Secretary Cohen?
8 A Because every time the Secretary
9 travels a military assistant goes with him to
10 handle phone calls or other things that might
11 occur, and so she was then the deputy
12 military assistant, and it is likely that she
13 would have done it or Captain Kleman, who is
14 an Air Force captain, therefore lower rank.
15 It's more likely that she was the one who was
16 there that day, but it could have been
17 somebody else.
18 Q What's Captain Kleman's first name?
19 A Kathryn.
20 Q And what is Captain Loewer's first
21 name?
22 A Deborah.
446
1 Q She's a captain, too?
2 A Well, I'm sure you know from your
3 knowledge of the military that captains in
4 the Navy are the equivalent of colonels in
5 the Air Force or colonels in the Army,
6 whereas captains in the Air Force are lower
7 ranks and they are right above lieutenants,
8 between majors.
9 Q Did both of these people work out
10 of Secretary Cohen's office?
11 A Yes.
12 Q And where is Captain Kleman today?
13 A She remains in Secretary Cohen's
14 office.
15 Q In Washington, D.C., at the
16 Pentagon?
17 A Right.
18 Q And you say there probably was a
19 security guard?
20 A At least one, maybe more.
21 Q A security guard from the Pentagon
22 or from Fox News?
447
1 A From the Pentagon.
2 Q And who would that security guard
3 likely have been?
4 A I have no idea.
5 Q What office would that security
6 guard have come from?
7 A The office that protects the
8 Secretary.
9 Q Was that security guard male or
10 female?
11 A I don't recall.
12 Q Who more frequently than other
13 security guards tended to go to these kinds
14 of appearances?
15 A It's impossible to say.
16 Q Do you remember the race of the
17 person?
18 A I do not.
19 Q Hair color?
20 A No.
21 Q Size?
22 A No.
448
1 Q So you discussed this in the
2 elevator going down, correct?
3 A That is correct.
4 Q Are these captains and security
5 people covered by top secret clearances?
6 A I have no idea what their
7 clearances are.
8 Q Was it your ordinary practice to
9 discuss Pentagon matters in the presence of
10 captains such as these two individuals and
11 security personnel such as you've just
12 described?
13 A Well, I didn't consider this an
14 issue of national security, but I feel free
15 to discuss issues in their presence, yes.
16 Q However, it was an issue involving
17 information from Linda Tripp's Pentagon file?
18 A That's not exactly an accurate
19 description.
20 Q Well, who spoke to who first? Did
21 Mr. Cohen speak to you or did you speak to
22 Mr. Cohen?
449
1 A I spoke to him.
2 Q And what did you say to him?
3 A He had been asked on the program if
4 Clifford Bernath had released the
5 information, or I think he -- you have a copy
6 of it because it was in last year's
7 deposition -- had been asked if Clifford
8 Bernath had -- I think Tony Snow said it was
9 Clifford Bernath who released this, wasn't
10 it, and then Secretary Cohen said yes.
11 Then he was asked if it was
12 illegal. Secretary Cohen then said well, it
13 was certainly inappropriate if not illegal.
14 In the elevator on the way down I said to
15 him, "This is more complex than that. I
16 think it's safe to say we should allow the IG
17 investigation to be complete before
18 commenting on what happened. Cliff didn't do
19 this on his own, and it's unclear right now
20 whether it's going to turn out to be illegal
21 or not."
22 That's all I said. The reason I
450
1 said this was because after every television
2 program like this there's a so-called stake-
3 out, another group of reporters outside, and
4 I thought he would get the question again and
5 he did.
6 Q You said Cliff didn't do this on
7 his own?
8 A That is my recollection of what I
9 said.
10 Q Did you --
11 A I basically said this is more
12 complex. Cliff didn't do this on his own,
13 and it's unclear whether it's illegal or not,
14 and this is what the IG is looking at.
15 Q And Secretary Cohen then said to
16 you how do you know that?
17 A No.
18 Q Did you tell Secretary Cohen that
19 in fact you had instructed Clifford Bernath
20 to obtain Linda Tripp's Pentagon file
21 information and release it to Jane Mayer.
22 A I did not say that during this
451
1 brief elevator ride, which was, you know, 20
2 or 30 seconds.
3 Q Was there anything that you said
4 from which Secretary Cohen could understand
5 that you were involved in the release of that
6 information?
7 A Not at that time.
8 Q Anyone else? In other words, Cliff
9 didn't do it on his own. Was there any
10 implication that specific persons were
11 involved in addition to Mr. Bernath?
12 A No.
13 Q When you said that this is more
14 complex than you, Mr. Secretary, have just
15 stated with regard to legality, did you tell
16 Secretary Cohen how you had come to that
17 conclusion?
18 A I did not.
19 Q How had you come to that
20 conclusion?
21 A Well, I had always felt and had so
22 said and have said this publicly many times
452
1 as well as in other fora that there's a
2 balancing act between the Freedom of
3 Information Act and the Privacy Act, and
4 whether that balancing act was made
5 appropriately or inappropriately at this
6 particular incident would be determined by
7 the IG and that's still my view.
8 Q Is there any other basis upon which
9 you say this is more complex other than the
10 fact that a decision hadn't been made yet by
11 the IG, meaning the Inspector General?
12 A I think I've run through why I said
13 what I did.
14 Q That's the sole basis?
15 A Yes.
16 Q In other words, no one had told you
17 that you had violated the Privacy Act or not
18 violated the Privacy Act by ordering the
19 release of Linda Tripp's information?
20 A No one in any official capacity has
21 told me that I violated the Privacy Act.
22 That's what the IG is trying to determine, I
453
1 understand.
2 Q Well, was there anyone who told you
3 in an unofficial capacity up to that elevator
4 ride with Secretary Cohen?
5 A Well, there are plenty of people in
6 the press who have written what they think
7 are the facts, but the fact of the matter is
8 that the IG is looking into this and will
9 make a determination.
10 Q Well, but what I'm saying is as of
11 the time of that elevator ride with Secretary
12 Cohen, when you're going down with the
13 secretary guard and either one of these two
14 captains, had anyone unofficially told you
15 other than what you read in the press that
16 your actions were contrary to the Privacy
17 Act?
18 A No one had directly told me, no.
19 Q Who told you indirectly?
20 A Well, I've told you. The Secretary
21 had made the comment about this in March
22 before the National Press Club, which you've
454
1 seen, in which he had said something similar
2 to what he had said on Fox News, that this
3 was certainly inappropriate if not illegal,
4 but he had never said that to me directly,
5 nor had any other official at the department
6 said that to me directly.
7 Q And what date was that appearance
8 on Fox News again? That was April 26, was it
9 not?
10 A I believe it was April 26.
11 Q Now, do you know who Don Perkal is?
12 A He's a lawyer in the defense
13 department.
14 Q Had Mr. Perkal ever said to you or
15 anyone else anything to the effect that
16 Bernath committed a technical error but no
17 criminal intent? We need to look at this
18 closer? Had you heard anything like that up
19 to the elevator ride?
20 MR. MURPHY: Let me just lodge an
21 objection. I don't know in what capacity
22 such a conversation, if it occurred, may have
455
1 occurred, and it implicates certainly a
2 possibility of an attorney-client
3 communication but --
4 THE WITNESS: The fact of the
5 matter is Mr. Perkal never said that to me.
6 BY MR. KLAYMAN:
7 Q Well, flip two pages in Exhibit 5
8 to the page called 3. Looking down on the
9 Monday the 16th of March, 1998, entry at 1500
10 hours, "Bernath called Don Perkal, briefed
11 him, provided him with a copy of the details
12 memo. Later Don delivered an assessment,
13 Bernath committed a technical error but no
14 criminal intent. We need to look at this
15 closer."
16 Do you see that?
17 A I do see it.
18 Q Does this refresh your recollection
19 as to whether anyone ever discussed this
20 apparent assessment by Don Perkal?
21 A Yes, it refreshes my recollection,
22 and the answer is still no, no one ever
456
1 discussed this with me.
2 Q So it confirms that you never heard
3 anything to this effect from either
4 Mr. Perkal or anyone else up to the date you
5 took the elevator ride with Secretary Cohen
6 on April 26, 1998, at Fox News Sunday?
7 A That is correct.
8 Q Have you heard anything such as
9 I've just read to you from Mr. Perkal's
10 assessment since that date?
11 A I have not. I don't believe I ever
12 talked to Mr. Perkal about this.
13 Q Have you heard that from anyone
14 else?
15 A Not that I recall.
16 Q You don't remember? In other
17 words, you may have heard it but you don't
18 remember right now?
19 A I don't believe I've heard this
20 from anybody else, and that's what I
21 testified five minutes ago, that no one has
22 told me this.
457
1 Q Now, you testified back on May 15,
2 1998, and if you'd like, you can look at your
3 transcript at page 354.
4 A What did I say?
5 MR. MURPHY: Let's look.
6 BY MR. KLAYMAN:
7 Q At line 14, "After the statement
8 was made by Secretary Cohen, statement naming
9 Clifford Bernath, did you ever tell him as
10 his press secretary you better correct that?
11 We shouldn't be blaming just Cliff Bernath?
12 "Answer: Yes, I did.
13 "Question: When did you tell him
14 that?
15 "Answer: I told it to him right
16 afterwards.
17 "What if anything Did Secretary
18 Cohen do that you know of?"
19 Now, you also discussed in that
20 elevator what I've just read to you, correct?
21 A This was the moment when I
22 discussed it. This was the moment after the
458
1 Fox appearance. It was in the elevator that
2 I made this comment to him.
3 Q Well, what I read to you is
4 different than what you testified to this
5 morning, in terms of saying, we shouldn't be
6 blaming just Clifford Bernath, correct?
7 MR. MURPHY: Objection to your
8 characterization.
9 MR. KLAYMAN: I'm giving him an
10 opportunity to explain.
11 THE WITNESS: What I just told you
12 was that in the elevator ride I made two
13 points. The first point was that Cliff
14 Bernath alone wasn't involved in this, that
15 it was more complex than that, and, second,
16 that it wasn't clear that it was illegal.
17 Those are the two points I made in a very
18 brief elevator ride.
19 I also said that, in line with
20 earlier advice I'd given him back in March,
21 that the safest way to deal with questions on
22 this was to say it's under review, I've asked
459
1 the IG to review it, that review is ongoing,
2 and it's inappropriate to talk about it till
3 it's over.
4 He went out, was asked a question
5 about this and I don't have a transcript of
6 what was said then, but my recollection is
7 that what he said essentially when asked
8 about this was look, this is under review.
9 It's better not to talk about it until the IG
10 completes the review and all the facts are
11 in. That's my recollection of what he said
12 to the stakeout after the Fox News
13 appearance.
14 But this followed my only
15 conversation I had with him about the details
16 of this up until this point, which was April
17 26.
18 BY MR. KLAYMAN:
19 Q Who was present at the stakeout?
20 A I don't recall.
21 Q Have you ever testified to this
22 before a grand jury, what you've told us
460
1 today?
2 A I don't believe I was asked about
3 this, but I'd have to go back and review the
4 be grand jury testimony, which you've
5 probably done; it's public. But I don't
6 believe this came up in the course of my
7 grand jury testimony.
8 Q The issue of what you said to
9 Secretary Cohen?
10 A I do not believe this came up.
11 Q And the issue of what Secretary
12 Cohen may have said to you, that never came
13 up?
14 A Well, as I say, I don't recall that
15 he said anything to me at the time. I think
16 he just nodded.
17 Q Did it ever come up later in the
18 grand jury testimony what Cohen may have said
19 to you?
20 A Not that I recall.
21 Q Or what you said to Cohen?
22 A Well, I'd have to go back and
461
1 reread the testimony.
2 Q I won't hold you to it. The
3 testimony speaks for itself, but do you
4 remember anything to that effect?
5 A Well, I just said I don't recall
6 that this was an issue before the grand jury.
7 Q Now, did there come a point in time
8 when you had further discussions with
9 Secretary Cohen about what had occurred?
10 A Yes.
11 Q And when did that happen?
12 A That happened sometime in May.
13 Q And how did that discussion come
14 about?
15 A It came about at my initiative. I
16 would say in late May, but I'm not certain on
17 the date -- about the date and, as I say, it
18 came about at my initiative.
19 Q Did it come about in terms of your
20 initiative by your sending him a memorandum
21 or calling the secretary?
22 A No. I believe I was in his office
462
1 talking about something else and at the end
2 of the conversation talked to him about the
3 Tripp matter.
4 Q Now, between the date of the Fox
5 News Sunday appearance on April 26, 1998, and
6 late May 1998 did Secretary Cohen or anyone
7 from his office ever get back with you and
8 say who was involved in releasing the Tripp
9 information?
10 A Not that I recall. But I had
11 talked about this earlier with Bob Tyrer, his
12 chief of staff, in March, March 17 or 18, I
13 believe, maybe 18th, and I had mentioned it
14 to the Secretary one other time, I think,
15 after the Fox show in just passing in his
16 office and then had a more detailed
17 conversation with him, I believe, in
18 mid-to-late May in his office.
19 Q Well, on March 17, when you had a
20 conversation with Bob Tyrer --
21 A I believe it was March 18.
22 Q March 18, who initiated that
463
1 conversation?
2 A Well, he called me. I testified to
3 this last year before you. He called me when
4 I was in Montana and we talked about the
5 circumstances under which the information had
6 been released.
7 Q And you told Mr. Tyrer on March 18,
8 1998, that in fact it was not just Clifford
9 Bernath but other people were involved in
10 releasing the Tripp information?
11 A What I believe I told him was the
12 flow of events that had led up to the release
13 of the information, the phone call, all of
14 which I testified to before you.
15 Q And that included your involvement?
16 A Yes, it did. Well, it included
17 exactly what happened, that the calls had
18 come in on how we had dealt with the
19 information and passed it on.
20 Q And you didn't hold any facts back
21 from Mr. Tyrer, did you, on March 18?
22 A Well, I can't recall how detailed
464
1 that conversation was, frankly, and I think I
2 testified at the time that I couldn't recall
3 with complete specificity what was said, but
4 my recollection is that we did have a brief
5 conversation about the circumstances. He was
6 more concerned with what happened from that
7 time forth rather than how we'd gotten into
8 the situation we were in.
9 Q Well, I just want to be clear. You
10 did tell him that you were involved, that you
11 got the call from Mayer, that you ordered
12 Bernath to get the information, and that you
13 instructed Bernath to release it?
14 MR. MURPHY: Object to the form of
15 the question. You can answer.
16 BY MR. KLAYMAN:
17 Q Correct?
18 A Mr. Klayman, I want to be very
19 clear that I don't remember the degree of
20 specificity of this conversation with Bob
21 Tyrer. It is my recollection that I gave him
22 a very brief outline of what had happened,
465
1 but I don't recall how detailed it was.
2 Q Which brief outline included your
3 involvement in the matter?
4 A It certainly included the fact that
5 I had gotten a phone call, that I had relayed
6 that Cliff had taken the request over, and
7 that I was very aware of what was happening.
8 Q And it included that you had
9 instructed Mr. Bernath to get the information
10 concerning Linda Tripp?
11 A Mr. Klayman, we've been through
12 this before. I contend I did not instruct
13 him to get the information. It was a more
14 nuanced transaction than that. It was a
15 situation where he volunteered to take it
16 over. I knew exactly what he was doing. He
17 kept me informed about what he was doing, but
18 it is not my view that I instructed him.
19 Q You knew what he was doing, and I
20 believe you said you did nothing to stop him?
21 A That's right. I would say in
22 answer to a question I'm sure you're going to
466
1 ask me we were jointly responsible for what
2 happened. I don't think there's any doubt
3 about that. We both knew what was happening.
4 Q And that basic information was
5 conveyed to Mr. Tyrer on March 18?
6 A As I say, I believe it was but I
7 don't recall what form.
8 Q Now, when you conveyed that
9 information to Mr. Tyrer, it was your belief
10 you were conveying that information to the
11 Office of the Secretary, correct?
12 A Not necessarily. This has always
13 been an extremely -- I'd have to say low-key
14 item for the Secretary in that this is not an
15 issue that he has spent a lot of time on or
16 that has come up frequently in his dealings
17 with the press, and I don't know what, if
18 anything, Mr. Tyrer told the Secretary about
19 this.
20 Q I didn't ask you that question, but
21 at the time you conveyed it to Mr. Tyrer, who
22 is Secretary Cohen's chief of staff --
467
1 A Correct, he is his chief of staff.
2 Q It was your understanding that you
3 were communicating with the number two
4 person, other than the Secretary himself, in
5 the office of Secretary of the Defense,
6 correct?
7 A Well, of course, it was my
8 understanding I was communicating with him.
9 I was talking to him on the phone. How could
10 I not understand that?
11 Q Now, in the course of your duties
12 and responsibilities at the Pentagon as press
13 secretary, from time to time you do relay
14 information to Mr. Tyrer with the purpose of
15 communicating with the Secretary of Defense,
16 correct?
17 A I do.
18 Q And that's common practice,
19 correct?
20 A That is common practice.
21 Q So you had reason to believe that
22 Mr. Tyrer would then convey the information
468
1 that you gave to him on March 18, 1998, to
2 Secretary of Defense Cohen?
3 A Well, I didn't think about it in
4 those terms one way or another because this
5 part of the phone conversation was minor
6 compared to other parts of the phone
7 conversation. This wasn't really what he was
8 calling about. He was calling about
9 something else.
10 Q You did not instruct Mr. Tyrer to
11 withhold this information on March 18, 1998,
12 from Secretary Cohen?
13 A Absolutely not.
14 Q You'd do anything like that, would
15 you?
16 A I have never instructed him to
17 withhold information from the Secretary.
18 Q And you've never instructed anybody
19 at the Pentagon to withhold information from
20 Secretary of Defense Cohen, right?
21 A That is correct.
22 Q Now, based on your knowledge of
469
1 what the chief of staff does and being chief
2 of staff to the Secretary of Defense, it is
3 his duty and responsibility, is it not, to
4 keep the Secretary of Defense fully informed?
5 A I think that I won't comment on his
6 duties.
7 Q That's your understanding, is it
8 not?
9 A He does what the Secretary wants
10 him to do.
11 Q What was your understanding on
12 March 18, 1998, of the duties and
13 responsibilities of the chief of staff to the
14 Secretary of Defense?
15 A That he is his principal staff
16 person who oversees his office and his
17 concerns.
18 Q That he is in effect the Secretary
19 of Defense's right-hand man?
20 A Yes.
21 Q That he is in effect the Secretary
22 of Defense's alter ego?
470
1 MR. MURPHY: Objection.
2 THE WITNESS: I can't speculate
3 about the psychological terms.
4 BY MR. KLAYMAN:
5 Q That when you can't get ahold of a
6 the Secretary of Defense the next best person
7 to be able to communicate with the Secretary
8 of Defense is the chief of staff?
9 A These are very theoretical
10 questions. The point of the matter is that
11 Bob Tyrer, the chief of staff, called me
12 about a particular issue. We dealt with that
13 issue. This was the part of the conversation
14 that dealt with the exact tick-tock of events
15 was a very small part of the conversation,
16 but it did occur in some way.
17 Q The question was that it is your
18 practice, since you've been press secretary,
19 that when you can't get ahold of the
20 Secretary himself, that the next best person
21 to communicate with is the chief of staff?
22 A It depends what the issue is. I do
471
1 frequently talk with the chief of staff, yes.
2 Q Now, you say you had a brief
3 conversation with Secretary Cohen somewhere
4 in between the time of March 18, when you had
5 the conversation with Mr. Tyrer, and your
6 later conversation in Secretary Cohen's
7 office at the end of May, correct?
8 A Right.
9 Q And where did that conversation
10 occur?
11 A Also in his office. I mean, I had
12 one conversation with him in the elevator,
13 and I had another very brief conversation
14 with him in, I would say, early May and then
15 a more substantive conversation with him in
16 mid-to-late May.
17 Q And where did that shorter
18 conversation occur in early May?
19 A In his office.
20 Q And how did it arise?
21 A At the end of the conversation
22 about base closings I mentioned that clearly
472
1 I had acted too quickly in the Linda Tripp
2 issue. I just said that I had done something
3 that if I thought about it longer I might not
4 have done.
5 Q And did he initiate that
6 conversation about Linda Tripp?
7 A I initiated it.
8 Q And when you say you had done
9 something, you told the Secretary exactly
10 what you had done?
11 A Yeah. I just said that the release
12 of information by this time it had become a
13 big news item that was -- I wouldn't say a
14 big news item but it had become a news item,
15 and I just said looking back on it I wouldn't
16 have done it that way.
17 Q You assumed when you told him that
18 you wouldn't have done it that way that he
19 had already been informed by Mr. Tyrer as to
20 what you had done?
21 A I didn't assume that.
22 Q So you told Secretary Cohen exactly
473
1 what you had done?
2 A I can't recall in great detail what
3 I did, but, I mean, he certainly knew of my
4 involvement at that time -- well, I don't
5 know whether he did or not. This was
6 probably early May, and I think basically
7 what I said to him was, you know, looking
8 back on it we shouldn't have done this or I
9 wish I'd thought about it more, something
10 like that.
11 Q So when you said that to him, you
12 assumed that Mr. Tyrer had communicated your
13 earlier conversation?
14 A No, I didn't assume that.
15 Q When you said that to him in early
16 May you were aware that Clifford Bernath had
17 already been deposed in this lawsuit and in
18 fact had at that point already identified you
19 as participating in the release of the
20 information concerning Linda Tripp?
21 A Certainly there had been stories in
22 the news in April, I believe. I can't
474
1 remember when Bernath was deposed.
2 Q So it was your understanding that
3 Secretary Cohen already had the basic facts
4 that you were involved in the release of the
5 Tripp information?
6 A I guess I did assume that, yeah.
7 Q And in fact there was discussion at
8 the Pentagon up to the point you met with him
9 in his office briefly in early May that you
10 were involved? It was well known at the
11 Pentagon?
12 A Well, I can't speak for that.
13 People weren't actually coming up to me and
14 saying we know you were involved in this.
15 Q Did anyone ever say to you, Ken,
16 something to the effect we know you're
17 involved, we like you anyway, anything like
18 that?
19 A Not that I recall.
20 Q People didn't discuss it with you?
21 They just clammed up?
22 A Few people tell me they like me.
475
1 I've gotten used to it.
2 Q I'm talking more about the Tripp
3 information.
4 A Nobody has spoken to me that way
5 about it, no.
6 Q Did anyone come up to you and talk
7 to you about it?
8 A No.
9 Q Now, did you say anything else to
10 Secretary Cohen as you mentioned this at the
11 end of your conversation in early May?
12 A No. It was very brief.
13 Q And what did he say in return?
14 A I don't recall he said anything.
15 Q Did he gesture in any way?
16 A No, not that I recall.
17 Q He looked upset?
18 A No.
19 Q Was he listening to you?
20 A Yeah, I think so. We were just
21 walking through his office outer door. We
22 were walking in one door of his office and
476
1 out the other door, and we were having a
2 conversation but, as I said, another topic,
3 and he made some comment about something that
4 somebody had done that didn't make sense to
5 him, and I said "Well, you know, sometimes,
6 you know, people do things that don't make
7 sense," and I gave as an example the whole
8 Tripp thing. That was the substance of the
9 conversation.
10 Q Did he put his hand on your
11 shoulder?
12 A He did not.
13 Q Did he try to console you in any
14 way?
15 A He did not.
16 Q He showed no emotion at all?
17 A That's my recollection, right.
18 Q Is that his normal demeanor, to
19 show no emotion, or has he sometimes shown
20 emotion?
21 MR. MURPHY: Objection, I think
22 we're getting far afield.
477
1 MR. KLAYMAN: It's one question. I
2 think it's legitimate in this context.
3 THE WITNESS: That's his normal
4 demeanor.
5 BY MR. KLAYMAN:
6 Q Now, during that conversation in
7 early May did you tell him we better correct
8 this misimpression about Bernath?
9 A No.
10 Q Did you ever tell him that?
11 A We ran through the conversation
12 that I had with him in the elevator on April
13 26. I mean, you and I have already done
14 that. That's when I spoke to him about that,
15 and as I said it was very quick. It was
16 glancing. It was during a very brief
17 elevator ride from the fourth floor to the
18 third floor. You know the Fox News
19 situation. You've been there more than I
20 have. You can probably tell me what floor
21 they're on. I don't recall, frankly.
22 Q After you told him that you better
478
1 correct this, which you did in the elevator,
2 correct?
3 A Mr. Klayman, I want to be very
4 clear about what I said. I didn't say you
5 better correct this. I said it's more
6 complex than you've stated, Bernath wasn't
7 the only person involved, that it's unclear
8 whether it was illegal. This is what the IG
9 is looking into. The safest answer is the IG
10 is looking into this. We ought to wait till
11 the report's completed. That's basically
12 what I said to him.
13 Q Let me refer you back to your
14 testimony. This is May 15, 1998, again line
15 14: "After the statement was made by
16 Secretary Cohen, did you ever tell him, as
17 his press secretary, you better correct that;
18 We shouldn't be blaming just Clifford
19 Bernath?
20 "Answer: Yes, I did.
21 "Question: When did you tell him
22 that?
479
1 "Answer: I told it to him right
2 afterwards."
3 Right?
4 A Right.
5 Q So when was it that you told him
6 unequivocally that you better correct this?
7 A I told him on the elevator on the
8 way down.
9 Q At any time did Secretary Cohen or
10 any of his representatives ever get back to
11 you to establish a way to correct it?
12 A Well, I think in the Secretary's
13 mind by making the statement he did at the
14 stakeout that he was dealing with the issue,
15 but I have to tell you that I am not aware --
16 I had not briefed the Secretary fully on the
17 details of this before April 26, and I did
18 not consider what I said to him in the
19 elevator a full brief on April 26.
20 Q My question, though, is what, if
21 anything, did Secretary Cohen or his
22 representatives do after you told him to
480
1 correct it other than making the statement
2 that he made at the stakeout in front of Fox
3 News on April 26, 1998?
4 A That is the statement that he made.
5 That was the correction.
6 Q That's it?
7 A Right.
8 Q And you don't know what was in the
9 Secretary's mind when he made that statement,
10 correct?
11 A I do not.
12 Q And you've never talked to him what
13 was in his mind?
14 A No.
15 Q And just for clarity purposes what
16 was that statement?
17 A I've told you that I don't recall
18 the statement specifically, but my
19 recollection is he said essentially we
20 shouldn't rush to judgment. The details are
21 being looked into by the IG. It will come
22 out when the IG comes out. He did not,
481
1 though, specifically exonerate Mr. Bernath at
2 that time. He did not say Mr. Bernath was
3 not the only person who released this
4 information.
5 Q And he's never said that, correct?
6 A That to the best of my knowledge is
7 correct.
8 Q And Mr. Tyrer's never said that
9 publicly, correct?
10 A Mr. Tyrer generally doesn't talk in
11 public.
12 Q And you don't know of anyone in the
13 Secretary's office who has said that
14 publicly?
15 A No, I do not.
16 Q And in fact Secretary Cohen has
17 never blamed you publicly, correct?
18 A I believe that's correct.
19 Q In fact, he's never implicated you
20 in any way in the release of Tripp's
21 information publicly?
22 A Not that I've seen.
482
1 Q And no one from his office has?
2 A Not that I'm aware of. They may
3 feel they don't need to since it's been
4 widely published.
5 Q But you don't know that. That's
6 your supposition, correct?
7 A That is -- I know it's been widely
8 published. That's not a supposition.
9 Q I'm saying you don't know what they
10 are thinking?
11 A That is correct.
12 Q Now, you had a discussion at the
13 end of May, and it arose in the Secretary's
14 office, correct?
15 A Right.
16 Q And that was a longer conversation,
17 correct?
18 A Yes.
19 Q Who initiated it?
20 A I initiated it.
21 Q And what did you say?
22 A I basically walked through what had
483
1 happened, talked about how I'd gotten the
2 call on Thursday night and how I responded to
3 it, and said that this was something in which
4 I was -- in which Cliff and I had done
5 together and basically it was a short
6 conversation. It was relatively brief.
7 At the end of the conversation and
8 the context of this conversation I believe
9 that triggered the conversation was that it
10 had come up in response to some press
11 reports, that I had brought it up in response
12 to some press reports, and I had said to him
13 at the end of the conversation, "My job is to
14 solve problems for you, not to create
15 problems. If this becomes a politically hot
16 issue for you, I'm perfectly willing to
17 resign or handle this in any way you think
18 would be appropriate."
19 Q Was there anything else he said
20 during that conversation?
21 A Anything else I said, no.
22 Q And what did the Secretary say in
484
1 response?
2 A He said thank you. That was my
3 recollection of what he said.
4 Q Thank you for resigning?
5 A No. No, he just said thank you.
6 Q That's all he said, thank you?
7 A Yeah. He didn't say much.
8 Q Well, is that all he said, two
9 words, "Thank you"?
10 A That's my belief what he said.
11 That's my understanding.
12 Q Did he show any emotion?
13 A Not that I recall.
14 Q Do you know whether Secretary Cohen
15 has ever discussed this whole incident with
16 The White House?
17 A No, I do not.
18 Q You don't know one way or the
19 other?
20 A No.
21 Q Have you ever had any other
22 discussions with Secretary Cohen about this
485
1 whole incident of releasing Tripp's
2 information other than what you testified to
3 today?
4 A Well, what I testified to last May.
5 Q So there's nothing in addition to
6 what you've already testified to up to this
7 point in time?
8 A That is correct.
9 Q Have you ever had any other
10 conversations with Bob Tyrer, his chief of
11 staff?
12 A I have had -- I've not -- yeah, I
13 guess I probably had some in May where I
14 basically told him at about the same time I
15 talked to the Secretary in mid-to-late May,
16 told him the same thing in the same detail
17 that I told the Secretary.
18 Q Did you offer to resign to Tyrer as
19 well?
20 A I did.
21 Q Has anyone at the Department of
22 Defense ever suggested that you should resign
486
1 other than yourself?
2 A Not that I'm aware of, no.
3 Q Has anyone throughout the Clinton
4 Administration asked you to resign?
5 A Not that I'm aware of.
6 Q Or even suggested you should
7 resign?
8 A Not that I'm aware of.
9 Q Have you ever been reprimanded by
10 Secretary of Defense about this whole Tripp
11 incident?
12 A Not that I recall. Certainly Tyrer
13 made it very clear to me that he was upset
14 and by implication the Secretary was upset
15 about how it had been handled, but I don't
16 believe the Secretary himself has reprimanded
17 me about it.
18 Q But Tyrer never said the Secretary
19 is upset. You just implied that?
20 A Well, I can't recall exactly what
21 Tyrer said, but certainly the message was the
22 Secretary was upset.
487
1 Q Did he ever use the words, "The
2 Secretary is upset"? I take it not?
3 A I just can't recall.
4 Q So you don't know one way or the
5 other?
6 A No.
7 Q Did you ever have discussions with
8 Secretary Cohen about this whole issue of
9 reprimand?
10 A No.
11 MR. KLAYMAN: I'll show you what
12 I'll ask the court reporter to mark. Maybe I
13 can show it to you. Let's just take a
14 five-minute break.
15 THE VIDEOGRAPHER: Going off video
16 record at 11:22.
17 (Recess)
18 THE VIDEOGRAPHER: We're back on
19 video record at 11:32.
20 MR. KLAYMAN: I show you what I'll
21 ask the court reporter to mark as Exhibit 6.
22 (Bacon Deposition Exhibit No. 6
488
1 was marked for identification.)
2 BY MR. KLAYMAN:
3 Q And I'll turn your attention to a
4 document about a quarter of the way in. It's
5 a Department of Defense news briefing of
6 Thursday, May 21, 1998, 1:30 p.m.
7 Mr. Kenneth H. Bacon --
8 A I'm sorry. What page is this?
9 Q Mr. Fitton can help you find it.
10 It's Bates number 11, the stamped numbers at
11 the bottom.
12 MR. FITTON: It's a transcript of
13 your briefing.
14 BY MR. KLAYMAN:
15 Q Do you see that document?
16 A Yes.
17 Q Looking at the bottom of the page,
18 this is the question that you're asked during
19 the Department of Defense news briefing,
20 "Have you been reprimanded by the secretary
21 about this at all," referring to the Tripp
22 incident?
489
1 "Answer: I've had extensive
2 discussions with the Secretary about this,
3 and I think I'll just wait for the IG
4 investigation to finish."
5 So you're responding there,
6 Mr. Bacon, that you did have extensive
7 discussions with Secretary of Defense Cohen
8 about whether you would be reprimanded,
9 correct?
10 MR. MURPHY: Objection, but you can
11 answer.
12 THE WITNESS: Well, first of all, I
13 think you've misinterpreted, if I may say,
14 what the meaning of this response is. I was
15 asked had I been reprimanded, and I
16 specifically did not answer the question. I
17 regard this answer as saying that I've had
18 discussions with the Secretary about this
19 topic and that I'll wait for the IG
20 investigation to finish. That's what I meant
21 by that answer.
22 BY MR. KLAYMAN:
490
1 Q So you were giving an evasive
2 response?
3 A Yes, that is true.
4 Q You wanted to give them the
5 impression that you had discussed being
6 reprimanded and that you had had extensive
7 discussions with the Secretary?
8 A No, that's exactly not what I
9 wanted to do. What I wanted to do was say
10 that the question of reprimand will follow
11 logically from the IG report and that it's
12 important to wait for the IG finishes its
13 work before getting into issues like that,
14 and then the Secretary and everybody else
15 will have a full set of facts that they can
16 review and decide how to respond to.
17 Q Now, this morning and before when
18 you testified on May 15 you certainly have
19 testified -- correct me if I'm wrong -- that
20 your discussions with Secretary Cohen were
21 rather brief about the Tripp incident?
22 A They were extensive in that I told
491
1 him, the facts.
2 Q So you can have brief conversations
3 yet be extensive at the same time? That's
4 your understanding?
5 A I think a brief conversation that
6 gives the necessary facts are extensive
7 enough.
8 Q And when you said extensive
9 discussions you were including the
10 discussions with Mr. Tyrer as well, correct?
11 A I talked to Tyrer about the
12 Secretary. I mean, by this time I'd spoken
13 to the Secretary twice in his office about
14 this and I've given you both those times.
15 Q Was your conversation with
16 Mr. Tyrer extensive?
17 A Well, I've had -- I can't remember
18 the number of conversations that I've had
19 with Mr. Tyrer or when I've had the
20 conversations, but I first -- I certainly had
21 the first one on March 18, and I had the
22 first conversation with the Secretary on
492
1 March 13 about this, when I was preparing him
2 for a weekend program with CNN, and then I
3 had the March 18 conversation with Tyrer, and
4 I can't remember the other conversations that
5 I had with Tyrer.
6 Q Well, certainly your conversations
7 with Mr. Tyrer, chief of staff, were as
8 extensive as your conversations with
9 Secretary Cohen, correct?
10 A Yes, probably more extensive.
11 Q During your March 18, 1998,
12 conversation with Mr. Bob Tyrer, did you tell
13 Mr. Tyrer that you had asked Clifford Bernath
14 to get the Tripp information?
15 A I believe so, but, as I said, I
16 cannot recall with great specificity the
17 details of that conversation.
18 Q What were your exact words to
19 Secretary Cohen in the elevator on April 26,
20 1998, regarding your involvement?
21 MR. MURPHY: Objection. I think
22 it's been asked and answered.
493
1 THE WITNESS: I think I've told you
2 in as much detail as I can recall.
3 BY MR. KLAYMAN:
4 Q Question number six that Judge
5 Lamberth has ordered you to answer is did
6 Bacon, that's you, tell Secretary Cohen the
7 circumstances that led to the release of
8 Tripp's background security information?
9 A That's what I believe I did in
10 mid-May in his office, yes.
11 Q Mid-to-late May?
12 A Mid-to-late May.
13 Q And previously you had told
14 Mr. Tyrer?
15 A Yes.
16 Q On March 18, 1998?
17 A Or later. I mean, as I said -- let
18 me repeat again. I don't remember with great
19 specificity what I told him exactly about
20 this on March 18 because the topic of
21 conversation was not primarily what happened
22 on March 13. It was something else.
494
1 Q Question number seven, did Bacon
2 discuss, did you discuss with Secretary Cohen
3 whether you had instructed Mr. Bernath to
4 release the Tripp information? If there's
5 any additional information that you haven't
6 provided that doesn't otherwise answer that
7 question --
8 A Well, it has always been my
9 contention that I did not instruct Cliff
10 Bernath to release the information.
11 Q Since when has that been your
12 contention?
13 A It has always been my contention
14 that I never said to Cliff release this
15 information. What I did was have a series of
16 discussions with Cliff Bernath on Friday,
17 March 13, that led to the release of the
18 information, and we both agreed to release
19 the information.
20 Q So what you're saying is you
21 specifically didn't do it on your own; you
22 did it in conjunction with cliff Bernath?
495
1 You both decided?
2 A Yes.
3 Q So you're not solely responsible;
4 you have someone who's responsible with you?
5 A We did this together.
6 Q And do you take responsibility for
7 having done it with Mr. Bernath?
8 A Yes, as his boss I take
9 responsibility for having done it with
10 Mr. Bernath. As I said, I was aware of what
11 he was doing and did nothing to stop it.
12 Q Question number one, what answer
13 did you tell Secretary of Defense William
14 Cohen to give in an interview on CNN
15 regarding the trip release?
16 A I advised him to say -- now
17 remember this was on March 13. I advised him
18 to say that the Department of Defense has
19 established procedures for investigating such
20 matters and we will follow those procedures.
21 Q Did Secretary of Defense Cohen ask
22 you what those procedures were?
496
1 A No.
2 Q Did anyone follow up and ask you
3 what those procedures were?
4 A Well, the procedures in fact were
5 followed, so nobody asked me what the
6 procedures were, but the procedures in fact
7 were followed.
8 Q What did Secretary of Defense Cohen
9 say in response?
10 A Not much.
11 Q What did he say that wasn't much?
12 A I don't believe he said anything in
13 response. This was -- I went up to his
14 office to discuss with him three or four
15 primary issues that I thought would come up
16 on a television interview with Wolf Blitzer
17 on March 15, 1998. The primary issue was
18 Iraq, which was the issue of the day. Other
19 issues involved Kosovo and -- but mainly it
20 was Iraq, and at the very end of the -- as I
21 recall, at the end of the conversation I
22 mentioned that The New Yorker was going to
497
1 have a piece and that if it came up this is
2 the response I suggested, and he basically
3 didn't respond.
4 MR. KLAYMAN: I'm going to show you
5 what I'll ask the court reporter to mark as
6 Exhibit 7.
7 (Bacon Deposition Exhibit No. 7
8 was marked for identification.)
9 BY MR. KLAYMAN:
10 Q The pages aren't numbered. Exhibit
11 7 is the transcript of March 15, 1998, Sunday
12 edition of CNN Late Edition with Wolf
13 Blitzer, 12:00 a.m. Eastern Time. Turning to
14 the fifth page in, do you see where it says,
15 "Blitzer: OK"? It's the fifth page in.
16 A Yeah.
17 Q "Blitzer: OK. I have to switch
18 gears completely. We only have a few seconds
19 left. Linda Tripp, an employee of yours at
20 the Pentagon, she told USA Today this past
21 week because of her reassignment -- she's
22 gotten a new job -- she says, 'I view this as
498
1 a demotion also a step towards my ultimate
2 termination. Politics aside this sends a
3 message to any government employee, political
4 or career, who would dare disclose evidence
5 of a possible crime allegedly perpetrated by
6 their employer," Linda Tripp, of course,
7 being the woman who secretly recorded
8 conversations with Monica Lewinsky, the
9 former White House intern. Was she demoted?"
10 And Secretary Cohen responds,
11 "She's not demoted. In fact, she has the
12 same paying job she had before. She and her
13 attorneys requested that she have the
14 opportunity to work at home in terms of flex
15 work. She is one of three who currently
16 enjoy that status today and one of some 10 or
17 12 who have had that experience in the past.
18 She has been able to work at home
19 at her request" --
20 A Sir, I can read this.
21 Q Well, we're on a video transcript.
22 I'd like to read it. I'm almost done.
499
1 "Because of her involvement with
2 the independent counsel, the time that must
3 be spent there, the fact it will be a
4 distraction for her at work, and so the level
5 of activity she's doing today is consistent
6 with her ability to carry that out. And so
7 it's not a demotion. She's paid the same
8 amount of money and thinking of the
9 circumstances should be quite satisfied with
10 that.
11 "Blitzer: Do you know her
12 personally?
13 "I have never met her."
14 Up to that point in time, had you
15 discussed any of those basic facts with
16 Secretary Cohen, what he just related?
17 MS. WEISMANN: I'm going to object
18 to the question and instruct him not to
19 answer. It's beyond the scope of what the
20 court has authorized in discovery here.
21 MR. KLAYMAN: Well, number one says
22 what answer did Bacon tell Secretary of
500
1 Defense William Cohen to give on CNN
2 regarding the Tripp release. This is
3 certainly information that concerns that --
4 THE WITNESS: This doesn't directly
5 concern the New Yorker story that's the issue
6 here. This is a different issue entirely.
7 BY MR. KLAYMAN:
8 Q In all due respect, the New Yorker
9 story did deal with Ms. Tripp's background.
10 MS. WEISMANN: Mr. Klayman, this
11 issue is clearly addressed in the court's
12 numerous orders and my objection stands.
13 MR. KLAYMAN: All right, we'll
14 certify it.
15 BY MR. KLAYMAN:
16 Q Then Mr. Blitzer asked Mr. Cohen as
17 follows: "You've never met her. While she's
18 been at the defense department, you've been
19 at the defense department. There are reports
20 this weekend in U.S. News and World Report
21 and the New Yorker magazine that when she was
22 19 years old she was arrested and it's
501
1 unclear whatever happened to that, but the
2 question is on her security application, when
3 she applied for a national security
4 clearances, did she make available that
5 information? Do you know? Did you know
6 about this incident before the reports of
7 this weekend?"
8 Secretary Cohen answers, "The
9 answer is no, I was not aware of it. This is
10 an allegation now contained in the New Yorker
11 magazine. I'm sure that it will be the
12 subject of some inquiry. If it's true, it's
13 a very serious matter."
14 Did you convey that response to
15 Secretary Cohen?
16 A Yes. I said that it should be
17 investigated, and if it's true it is a
18 serious matter.
19 Q Now, when you raised this with him,
20 what date was that? This was May --
21 A March 13.
22 Q March 13. Now, where did you meet
502
1 with him or have a conversation with him such
2 that you were able to give him that
3 information?
4 A I met with him in his office.
5 Q And what date was that?
6 A March 13.
7 Q And you told him specifically what
8 had occurred with regard to the release of
9 Tripp's information on that date, correct?
10 A I did not.
11 Q Where did he get the response, "If
12 it's true, it's a very serious matter"?
13 A I told him that the New Yorker was
14 expected to carry an article asserting that
15 Linda Tripp had been arrested and had not
16 indicated this on a form, and I said if he's
17 asked about that I said he could well be
18 asked about it because it will be out over
19 the weekend, and if he's asked about it I
20 recommend he say if that's true it's a
21 serious matter; the department has
22 established procedures for looking into that
503
1 and we will follow those procedures.
2 Q What was the basis of your telling
3 Secretary Cohen as early as March 13 that it
4 was a serious matter?
5 A My basis was that nothing but my
6 own hunch that it would be a serious matter.
7 I mean, I didn't talk -- as I've testified
8 before, I talked to no lawyers about this. I
9 just said this should be the answer to give.
10 Q But on that date on March 13 you
11 already knew how Linda Tripp had responded on
12 her security form, correct?
13 A That is correct.
14 Q So you were able to form your own
15 opinion as to whether it was a serious matter
16 on that date?
17 A That is correct.
18 Q And when you told the Secretary to
19 say this is a serious matter if true you gave
20 him information that in fact you had
21 confirmed that she had not been candid on her
22 security form?
504
1 A That is true, but I didn't tell him
2 that. All I said was that the story was
3 going to appear and this was the answer he
4 should give.
5 Q Did Mr. Cohen ask you how do you
6 know that?
7 A He did not.
8 Q Did he say anything to you to the
9 effect that how can I say this if I don't
10 know if it's serious or not?
11 A He did not.
12 Q Have you known Secretary Cohen to
13 go out and just parrot what you tell him to
14 say on a routine basis since you've been
15 press secretary?
16 A Well, I don't think that he does
17 parrot what I tell him to say on a routine
18 basis, and I think that to him this answer
19 made sense because it basically said we will
20 look into this. He didn't pass judgment on
21 it one way or another. He said we'll look
22 into it, and that's in fact what the
505
1 department did.
2 Q Was there any discussion with
3 Secretary Cohen, you and he, that making this
4 kind of a statement could harm the reputation
5 of Linda Tripp?
6 A There was not.
7 Q Did Mr. Cohen express any
8 reservation about saying this when he
9 appeared on CNN?
10 A Well, let's look at what he said.
11 He said if true. He didn't say it was true.
12 He said if true, it's a serious matter and
13 that the administration would -- that the
14 department would look into it.
15 Q Well, based on your experience in
16 journalism, and you've had considerable -- we
17 went over it -- is it proper journalistic
18 ethics to make statements like that when the
19 person who's making the statement doesn't
20 have the underlying facts?
21 MR. MURPHY: Objection. It's
22 beyond the scope of the questions that Judge
506
1 Lamberth has required Mr. Bacon to answer.
2 BY MR. KLAYMAN:
3 Q Well, what I'm trying to get at was
4 was there any inkling, any body movement,
5 statement, gesture, on Secretary Cohen's part
6 when you told him what to say, if it's true,
7 it's a very serious matter, that reflected
8 any reservation on his part in saying that?
9 A No, but I think that, because
10 you've read the entire transcript of this
11 Wolf Blitzer interview, you fully understand
12 the context of this issue, and it's important
13 to understand that because the main point of
14 the interview was not Linda Tripp. It was
15 basically Iraq, and there were other issues
16 that were covered.
17 Gender-integrated training was a
18 hot issue at the time. There were a number
19 of issues that were very much in the news.
20 This is something that we thought might come
21 up and might well not come up, whereas we
22 knew that Iraq and gender-integrated training
507
1 and others would come up.
2 So this was not the top of his list
3 of concerns at the time I talked to him about
4 it, which is one of the reasons I didn't give
5 him a lot of detail. Basically, my sense was
6 that what he wanted was an answer if the
7 question came up, and that's what I gave him.
8 Q During the time that you've worked
9 with Secretary Cohen as press secretary, have
10 you ever given him a response that he could
11 make on a television show where he's rejected
12 your recommendation on how to respond?
13 A Yes.
14 Q And that happens fairly frequently,
15 correct?
16 A It happens from time to time.
17 Q And during the course of your
18 experience in working with Secretary Cohen
19 when you've given him a response that he can
20 make on a television show has he ever asked
21 you for the underlying facts which gave rise
22 to your suggested response?
508
1 A Sometimes he does but not always.
2 Q Now, from the time that you were
3 called by Jane Mayer up to the point of this
4 interview on CNN, you'd had conversations
5 with The White House on a variety of matters,
6 hadn't you?
7 A As I testified a year ago, I
8 typically talk to The White House every day
9 in a conference call about foreign policy and
10 defense matters.
11 Q You had talked to The White House
12 about the Linda Tripp release, had you not?
13 A I had not.
14 Q You had talked about Linda Tripp
15 between that time period, the date of the
16 call from Jane Mayer and the appearance on
17 CNN?
18 A I don't believe I had.
19 Q Are you saying that you never
20 engaged in any conversation or communication
21 of any kind where Linda Tripp's name came up
22 during that period?
509
1 A The -- it never came up on one of
2 the noon conference calls. It is conceivable
3 but I don't recall this -- I don't recall
4 doing it, but it's conceivable that I did on
5 Friday, March 13, call P. J. Crowley at the
6 National Security Council and inform him that
7 Cohen was going to be on the Wolf Blitzer
8 show on Sunday, tell him what we thought the
9 topics would be, and in the course of that
10 mention that he was prepared for a Tripp
11 question. I would have done that because I
12 typically do that before the Secretary
13 appears on a Sunday television show, inform
14 The White House that it's happening and what
15 he think he'll discuss.
16 Q Did you tell Mr. Crowley what that
17 trick question would be?
18 MR. MURPHY: Tripp question.
19 BY MR. KLAYMAN:
20 Q Oh, I thought you said "trick
21 question."
22 A I said "Tripp" and I'm not sure
510
1 that I had this conversation. I'm saying I
2 could have well have had this conversation.
3 I have no mention of it in my notes, and I
4 can't rule out that I had it because it would
5 have been typical to have had it, but I don't
6 have any specific recollection of having had
7 that conversation.
8 Q Was anyone present during that
9 conversation from your end? Was it a phone
10 conversation?
11 A It was a phone conversation.
12 Q Your end of the phone?
13 A No.
14 Q Was anyone present on the other end
15 of the phone with Mr. Crowley?
16 A Colonel Crowley, no.
17 Q Was it done by speakerphone?
18 A No.
19 Q If you had that conversation you
20 would have told him the underlying facts in
21 terms of Linda Tripp's declaration that she
22 hadn't been arrested on the Pentagon form,
511
1 correct?
2 A I probably would not.
3 Q Why not?
4 A Unless he'd asked.
5 Q Did he ask?
6 A No. Well, I don't know whether I
7 had the conversation. I have no recollection
8 that he asked.
9 Q So he might have asked? You just
10 don't remember?
11 A Sir, I don't remember whether I had
12 the conversation. I'm just trying to lay out
13 for you what would have been a typical -- I
14 could have had this conversation, or I might
15 not have had the conversation. I have no
16 recollection of whether I did or not.
17 Q But what you're saying is in the
18 ordinary course of your duties,
19 responsibilities, you would have advised
20 someone at The White House such as Colonel
21 Crowley that that kind of question could come
22 up?
512
1 A I would have provided information
2 about any news that we expected to make or
3 deal with over the weekend, and in that
4 context I would have brought up the Tripp,
5 T-r-i-p-p, issue.
6 Q And you would have done that
7 because it is normal operating procedure for
8 your office to advise The White House when
9 some type of question could come up that
10 concerns The White House?
11 A I would have advised them solely so
12 they wouldn't be blind-sided by something
13 that had come up.
14 Q And that's your normal operating
15 procedure, correct?
16 A Right, and this is, if I made this
17 call, it is the only time I ever recall
18 discussing Linda Tripp with The White House.
19 Q Do you know whether anyone else
20 ever discussed Linda Tripp with The White
21 House after the period that Jane Mayer first
22 called you and asked for the information
513
1 about her?
2 A That's a very sweeping question.
3 MS. COVEY: Mr. Klayman, I would
4 object. This is going beyond the scope of
5 what Judge Lamberth laid out as the
6 permissible scope.
7 MS. WEISMANN: I join the
8 objection.
9 MR. KLAYMAN: Judge Lamberth
10 specifically stated in his order that the
11 primary issue is the contact, if any, that
12 the Pentagon had with The White House over
13 Linda Tripp?
14 MS. COVEY: Mr. Klayman, Judge
15 Lamberth laid out the specific questions that
16 were encompassed and what is permissible.
17 MR. KLAYMAN: And he allowed for
18 follow-up questions, which is what this is.
19 We've just established that there was
20 communication with The White House. This is
21 a follow-up question.
22 THE WITNESS: Sir, we did not
514
1 establish there was communication with The
2 White House on this.
3 BY MR. KLAYMAN:
4 Q Well, we haven't established that
5 there wasn't?
6 A That's entirely different.
7 Q I don't want to get into a debate
8 with you on --
9 A You will concede the point --
10 MR. KLAYMAN: Mr. Murphy, ask
11 Mr. Bacon it's probably in his best interest
12 not to --
13 MS. COVEY: Mr. Klayman, I've
14 allowed certain questions that were not
15 authorized by Judge Lamberth, and I'm posing
16 an objection that we've gone far enough.
17 MR. KLAYMAN: Who are you
18 representing, Ms. Covey?
19 MS. COVEY: As I said in the
20 beginning, I'm representing EOP and the FBI.
21 MR. MURPHY: Mr. Bacon will answer
22 your question but it was a rather broad
515
1 question about has anybody ever discussed
2 anything with the White House.
3 MR. KLAYMAN: How would you suggest
4 we answer it, Mr. Murphy?
5 MR. MURPHY: I'd suggest you
6 reframe it rather than I.
7 BY MR. KLAYMAN:
8 Q I'll reframe it. Apart from this
9 conversation which may or may not have
10 occurred, as you've testified, was there ever
11 any other conversations by you or anyone at
12 the Department of Defense with The White
13 House concerning Linda Tripp?
14 A There was no conversation by me,
15 and I cannot answer the rest of the question.
16 Q Any written communications, same
17 question but putting in written
18 communications?
19 A None by me.
20 Q Can you answer with regard to
21 anybody else?
22 A I cannot.
516
1 Q Have you ever searched your
2 telephone records to see whether there were
3 other conversations?
4 A My secretary searched my telephone
5 records.
6 Q Did she search them in response to
7 a subpoena?
8 A Yes.
9 Q Which subpoena was that?
10 A I believe it was the subpoena last
11 year.
12 Q For the grand jury?
13 A You issued a subpoena last year and
14 one this year as well. I didn't specifically
15 talk to her about this, but the -- but my
16 understanding is that this is the type of
17 document that is searched.
18 Q Now, you don't know, do you, what
19 prompted Jane Mayer to call you? In other
20 words, you don't know whether she was
21 prompted to call you because she had spoken
22 to someone else at the Pentagon, do you?
517
1 MR. MURPHY: Now, I am going to
2 object because I don't think that's within
3 the scope of what Judge Lamberth's allowed
4 you to ask questions about.
5 MS. WEISMANN: I join in the
6 objection.
7 MS. COVEY: I join in as well.
8 MR. KLAYMAN: Let's certify it.
9 Certainly White House contact is in Judge
10 Lamberth's order.
11 BY MR. KLAYMAN:
12 Q Now, reading further into that CNN
13 transcript, which is Exhibit 6, Wolf Blitzer
14 then asked, "That she may have not fully
15 disclosed information about her background in
16 applying for security clearances," and
17 Secretary Cohen answers, "Well, not a matter
18 of fully disclosing. There is an item that's
19 to be checked -- Have you ever been either
20 charged or arrested for a crime? -- and if
21 the answer was no, then that's not simply a
22 matter of fully disclosing. It's a
518
1 contradiction of the truth."
2 Now, where did Secretary Cohen get
3 that? Did you give him that answer, too?
4 A No, I did not give him that answer.
5 Q Did you give him any part of that
6 answer?
7 A No.
8 Q So Secretary Cohen must have been
9 in contact with somebody else concerning
10 Linda Tripp?
11 A Well, that's not necessarily true
12 because I suspect he knew what this form was,
13 having filled them out in the past himself.
14 I mean, when I described the New Yorker
15 article to him, I described that it was about
16 checking a form.
17 Q And you told him what form it was?
18 A Well, I can't remember whether I
19 mentioned the name of the form.
20 Q You told him generically what kind
21 of form it was?
22 A Yeah, I said it was a security form
519
1 of some sort.
2 Q And you told him that Linda Tripp
3 in fact had not checked the box where it said
4 she'd been arrested?
5 A No, I don't believe I said that. I
6 just said that there was going to be a story
7 alleging that she had misreported this on the
8 form. I'm not sure I got into the question
9 of checking the box or not.
10 Q However, it was your understanding
11 that by telling Secretary Cohen that in fact
12 this was a serious matter that he could infer
13 that she hadn't checked the box?
14 A Well, I don't know what he inferred
15 or didn't infer.
16 Q But that was your intent, to convey
17 that Linda Tripp had not checked the box that
18 there was an arrest?
19 A As I said, I don't think I got into
20 that level of detail. I just said that there
21 was going to be this article coming, and this
22 is what the article was going to assert.
520
1 Q Well, early on in this deposition
2 you talked about nuanced discussions with
3 Secretary Cohen. Was this a nuanced
4 discussion as you would describe it?
5 A No, it was a very brief discussion.
6 Q Did you ask Secretary Cohen after
7 the interview how did he come up with that?
8 A No.
9 Q During the time that you've worked
10 at the Pentagon, have you ever known
11 Secretary Cohen to take a position that would
12 be adverse to the interest of the Clinton
13 Administration?
14 MR. MURPHY: Objection. That's
15 well beyond the scope of the questions that
16 Judge Lamberth has indicated Mr. Bacon is
17 required to answer.
18 MS. WEISMANN: I join in the
19 objection.
20 MR. KLAYMAN: Certify it.
21 BY MR. KLAYMAN:
22 Q Next question by Mr. Blitzer, "So
521
1 0your people now at the Defense Department
2 are going to look into this allegation?"
3 Mr. Cohen: "I'm sure it will be looked into.
4 It's a serious matter." That response you
5 gave to Secretary Cohen, correct?
6 A That's repeating what he said
7 earlier.
8 Q "It has not been investigated."
9 You told him that, too, correct?
10 A I didn't tell him that.
11 Q And how did he know that?
12 A Well, I think he knew it because
13 the allegation only occurred sometime over
14 the weekend and he was talking on Sunday, but
15 I don't know that.
16 Q And then he added, "At this point
17 it's still an allegation that we have no
18 knowledge of." Did you tell him to say that?
19 A No.
20 Q Do you know where he got that?
21 A No.
22 Q "So at this point it's not a matter
522
1 of investigation," did you tell him to say
2 that?
3 A No.
4 Q Reading this and given the facts
5 that you've testified to, which are that
6 Secretary Cohen, each time you told him
7 something, had no response, based on the
8 information that you have and your contact
9 with Secretary Cohen is it your opinion that
10 Secretary Cohen really didn't want to know
11 what was going on or what had happened, to
12 protect himself?
13 A It's my opinion that he saw this as
14 something that was not going to be a primary
15 focus of his interview, that the main focus
16 was going to be Iraq, that that's what he was
17 concentrating on, that he felt that I had
18 given him enough information for him to
19 answer the question quickly and to get out of
20 it. That was my impression.
21 Q But has it been your impression
22 since you've been at the Pentagon and this
523
1 Tripp issue has arisen that Secretary Cohen
2 really didn't want to get involved in it?
3 A Well, Secretary Cohen has not been
4 involved in this issue beyond ordering an IG
5 investigation.
6 Q But I didn't ask you that question.
7 I asked you is it your impression that he
8 didn't want to get involved in it, and that's
9 why he never responded to anything you've
10 told him?
11 A I can't speculate as to why he
12 didn't respond. I told you that I think in
13 this particular case he was focused primarily
14 on Iraq and most of what we've been talking
15 about that day was Iraq because he was going
16 to give a major talk to the press club on
17 Tuesday about Iraq, and I had provided most
18 of the facts for that talk and that's what we
19 had spent most of the time in this particular
20 meeting discussing, and as I said this was
21 really a tail-end issue.
22 Q So you've never received the
524
1 impression that Secretary Cohen was just
2 washing his hands of this Tripp issue?
3 A Secretary Cohen ordered an IG
4 investigation, and I think that he believes
5 that was the right way to proceed, and he'll
6 wait until the investigation is over and
7 decide what to do next.
8 Q Blitzer then asked, "Okay,
9 Mr. Defense Secretary, thank you so much for
10 joining us. Very kind of you to spend part
11 of your weekend with us on Late Edition. We
12 hope you'll be a regular guest on this
13 program.
14 "Mr. Cohen: "My pleasure.
15 "Blitzer: Thank you very much."
16 After that interview, did you tell
17 Secretary Cohen that he needed to clarify or
18 correct anything he said?
19 A I was in Montana when this
20 interview took place, and I don't believe I
21 read a transcript of the interview until I
22 returned a week later.
525
1 Q Well, did anything happen at that
2 time?
3 A No.
4 Q Did you see him on TV as he was
5 giving the interview?
6 A I did not.
7 Q Do you know who accompanied him to
8 CNN that day from the Defense Department?
9 A I believe it was Colonel Bridges.
10 Q Do you know what they discussed?
11 A I do not.
12 Q Have you ever discussed with
13 Colonel Bridges what went on that day?
14 A I have not.
15 Q Are you aware that there was a
16 press conference on Tuesday, March 17, 1999,
17 where Tripp was discussed?
18 A Yes.
19 Q Were you there?
20 A I was not.
21 Q Colonel Bridges was there, correct?
22 A I do not know.
526
1 Q Have you ever reviewed a transcript
2 of that press conference?
3 A I have.
4 Q In what context have you reviewed
5 it?
6 A I read it after I got back, and
7 I've reread it several times in preparation
8 for various depositions.
9 Q What did Secretary Cohen say at
10 that press conference about Linda Tripp, if
11 anything?
12 A Well, you have it right there in
13 front of you. Rather than my speculating why
14 don't you --
15 Q What do you remember?
16 A I would rather have the text in
17 front of me.
18 Q We're referring to Exhibit 5, to
19 your first deposition session on the 15th.
20 MR. MURPHY: I have that.
21 BY MR. KLAYMAN:
22 Q And we would like to turn your
527
1 attention --
2 MS. WEISMANN: Can we get a copy,
3 please?
4 BY MR. KLAYMAN:
5 Q Turn your attention to a page which
6 is Bates numbered 60, 060. Do you see that
7 document?
8 A I do.
9 Q Does that refresh your recollection
10 as to what Secretary Cohen said on that day?
11 A Yes, it does.
12 Q And how so?
13 A I see the document. I've read it.
14 Q Now, in the answer which Secretary
15 Cohen gave, "I don't know the answer to how
16 it was made public other than the New Yorker
17 magazine apparently has an investigative
18 reporter who got the information," where did
19 Secretary Cohen get that information to be
20 able to say that?
21 A Well, by this time there had been
22 articles about it, but I also had told him --
528
1 remember, this is March 17. On March 13 I
2 told him the New Yorker was going to have an
3 article making an allegation about how Tripp
4 filled out her personnel -- had filled out or
5 not filled out the personnel form.
6 Q He then says, "The records are
7 supposed to be protected by the privacy
8 rules." Did you give that information to
9 Secretary Cohen?
10 A I did not.
11 Q Do you know where he got that?
12 A I do not.
13 Q Then he says, "I can't give you an
14 answer on how that reporter got his or her
15 hands -- I don't know who the reporter was on
16 the information going back into her past."
17 In fact, you had already told Secretary Cohen
18 on the 13th exactly who the reporter was,
19 correct?
20 A I had not.
21 Q You didn't just testify to that
22 today?
529
1 A No, I don't believe I ever said
2 that the article was going to be written by
3 Jane Mayer.
4 Q You told him, however, that Jane
5 Mayer had contacted you?
6 A Not on March 13, no. That's what I
7 said in May. He was -- to the best of my
8 knowledge, all he knew from me about this was
9 what I had told him on March 13.
10 Q And you had told him on March 13
11 that the Pentagon had released information?
12 A No. Let's be very clear again. I
13 don't know how many times we have to repeat
14 this but I want you to understand it. On
15 March 13 I said that the New Yorker magazine
16 was expected to run an article over the week-
17 end asserting that Linda Tripp had been
18 arrested when she was Young and may not have
19 reported that on a personnel form -- on a
20 security clearance form that she filed with
21 the Pentagon. That's what I said.
22 And then I said if you're asked
530
1 about this my recommendation is that you say
2 this is a serious -- if true, it's a serious
3 matter and we have established procedures for
4 looking into it. That's basically the advice
5 him I gave him and all the information I gave
6 him on March 13.
7 Q Did he ever say to you on March 13
8 this raises Privacy Act questions?
9 A He did not.
10 Q Did he say it raises legal
11 questions?
12 A He did not.
13 Q Are you aware that Colonel Bridges
14 was making statements publicly in and around
15 this time period that the release of Tripp's
16 information was "innocent information"?
17 A I am aware that he said that, yes.
18 Q Did he tell you that?
19 A He told me that on March 18.
20 Q Did Secretary Cohen ever raise this
21 with you, why is it that Bridges is saying
22 this is innocent?
531
1 A No, this is what Tyrer raised with
2 me on March 18.
3 Q Did you maintain that the release
4 of this information was innocent ay any time?
5 A I did not characterize it one way
6 or another.
7 Q Do you know why Bridges would make
8 that statement?
9 A I do not.
10 Q Do you know why he made that
11 statement?
12 A I do not.
13 Q Do you know whether Secretary Cohen
14 had told him to make that statement?
15 A I know that he had not told him to
16 make that statement.
17 Q How do you know that?
18 A Because Bridges told me that he
19 made it on his own.
20 Q Did he tell you on what basis he
21 made that?
22 A No.
532
1 MR. KLAYMAN: Let's change the
2 tape.
3 THE VIDEOGRAPHER: We're going off
4 video record at 12:18.
5 (Recess)
6 THE VIDEOGRAPHER: We're back on
7 video record at 12:20.
8 MR. KLAYMAN: I suggested that we
9 take a half an hour lunch break so we could
10 go through the documents that were produced
11 today and finish asking the questions that
12 Judge Lamberth ordered be asked and answered.
13 Ms. Weismann suggested that we ask all the
14 questions first and then go back after we've
15 had a chance to review the documents and ask
16 any supplementary questions. I've agreed to
17 that, correct?
18 MS. WEISMANN: That's correct.
19 BY MR. KLAYMAN:
20 Q The Secretary also said on March 17
21 at that press conference, "I don't know who
22 the reporter was and the information going
533
1 back into her past, frankly, it's a surprise
2 to me. I was not aware of it. It's now
3 under administrative inquiry and we'll have
4 to see what the facts hold up to."
5 Did Secretary Cohen get that
6 information from you?
7 A No.
8 Q Do you know where he got it?
9 A No.
10 Q So clearly he was in contact with
11 someone else, correct?
12 A Well, I'm not sure that I can
13 speculate about that.
14 Q And you don't know whether that
15 someone else was The White House, do you?
16 MS. WEISMANN: Object to the form
17 of the question.
18 THE WITNESS: Sir, at no time am I
19 aware of any conversations between Secretary
20 Cohen and The White House about this issue.
21 BY MR. KLAYMAN:
22 Q But you don't know one way or the
534
1 other? You can't vouch that he never
2 discussed this issue with The White House?
3 A I would be extremely surprised but
4 I can't vouch.
5 Q Turn your attention to the court's
6 order of March 31, 1999. We marked that as a
7 deposition exhibit. Was that No. 2?
8 MR. MURPHY: Four.
9 BY MR. KLAYMAN:
10 Q Turning to page 8, middle of the
11 page, as "Deposition testimony in this case
12 later showed, however, both Bacon and Bernath
13 testified that they had both been told before
14 the information was released that Tripp had a
15 previous arrest." That's what the court
16 writes. That's correct, is it not?
17 A That is correct.
18 Q Then the court writes, "This sworn
19 testimony is directly contrary to the earlier
20 public statement of Colonel Bridges as to the
21 department's role in the release of Tripp's
22 information. Thus, while this information by
535
1 no means proves a coverup, it does provide
2 some factual predicate for plaintiffs'
3 question's regarding the decision to name
4 Bernath but not Bacon publicly."
5 Now, are you aware of any
6 discussion by Colonel Bridges with Secretary
7 Cohen where the issue of whether to name you
8 publicly was raised?
9 A No, I am not.
10 Q And you don't know whether any such
11 conversation occurred, correct?
12 A No.
13 Q You don't know one way or the
14 other?
15 A No.
16 Q Have you ever asked Colonel Bridges
17 if he had had meetings with Secretary of
18 Defense Cohen?
19 A No. Well, I know that he escorted
20 him to the Wolf Blitzer show on Sunday, March
21 15.
22 Q So you don't know one way or the
536
1 other whether Bridges discussed with Cohen
2 withholding your name as part of the events
3 leading up to the release of Tripp's
4 information?
5 A I have no knowledge of that, but I
6 would be very surprised.
7 Q But you don't know one way or the
8 other?
9 A No.
10 Q Why would you be very surprised?
11 A I just don't -- one, I think he
12 would have told me, but, two, I don't think
13 this is what they discussed. My expectation
14 is that -- and I don't know, but my
15 expectation is they talked about Iraq.
16 Q Knowing what you've testified to,
17 that Cohen never really responded to anything
18 you've said about Tripp, is it your opinion
19 the reason he never responded is because he
20 got other information from other sources?
21 A No.
22 Q That is one explanation, is it not?
537
1 A The -- no, I don't think that's an
2 explanation.
3 Q So to this day you don't know why
4 the Secretary never responded to you?
5 A As I said, this was not the primary
6 issue of concern to him. At this point he
7 was mainly concerned with Iraq, and in my
8 dealings with him that was his primary focus.
9 Q Well, have you ever discussed with
10 him what his concern was?
11 A I discussed at one point and I
12 don't remember whether I had a direct
13 discussion with him or with Tyrer. There was
14 a Richard Morris article that I wanted to
15 respond to because I felt it was inaccurate
16 and -- because I felt it made inaccurate
17 statements about him. I believe this was in
18 June and I proposed a response to that
19 article and he decided not to respond.
20 Q The Secretary decided not to
21 respond?
22 A He didn't want to respond.
538
1 Q What was in the article that caused
2 you concern?
3 A I thought false statements about
4 Secretary Cohen.
5 Q And what were they?
6 A That he was operating at the behest
7 of The White House.
8 Q And did Secretary Cohen tell you
9 why he wasn't going to respond?
10 A He felt that the article was -- the
11 column was so outrageous and beyond the pale
12 that it would just go away, and he didn't
13 want to get into a public dispute over this.
14 He felt it would call attention to something
15 that was actually quite limited in impact.
16 Q Where did this conversation take
17 place?
18 A Well, as I say, I'm not sure that I
19 talked to him directly. I may have talked to
20 Tyrer at the time. I submitted a memo to the
21 Secretary suggesting the response, and I
22 believe Tyrer had told me that he didn't want
539
1 to respond.
2 Q Did you then ask Tyrer why didn't
3 he want to respond?
4 A No. No. I think Tyrer told me. I
5 gave you the explanation.
6 Q Did you say anything to Tyrer or
7 the Secretary of Defense, well, if you don't
8 respond, the public can take that as an
9 admission?
10 A No, I understood fully why he
11 didn't want to respond.
12 Q Now, based on your considerable
13 experience in the media, you are aware that
14 the public sometimes does draw that
15 conclusion when you don't respond, correct?
16 A I'm aware of many things,
17 Mr. Klayman, and I'm principally aware of the
18 fact that there was a very good reason not to
19 respond to this, that it would have called
20 much more attention to it than not
21 responding.
22 MR. KLAYMAN: I show you what I'll
540
1 ask the court reporter to mark as Exhibit 7.
2 (Bacon Deposition Exhibit No. 8
3 was marked for identification.)
4 BY MR. KLAYMAN:
5 Q Is this the article of Dick Morris
6 to which you're referring?
7 A Yes.
8 Q To this day, Mr. Bacon, to be
9 absolutely clear, no one, either the
10 Secretary or anyone else at the Department of
11 Defense, has ever responded to this article
12 by Dick Morris?
13 A We -- my attorney sent a letter to
14 Dick Morris and to the publisher of the
15 Washington Post about this article.
16 Q Did your attorney just tell you
17 that.
18 MR. MURPHY: New York.
19 THE WITNESS: New York Post.
20 BY MR. KLAYMAN:
21 Q Did your attorney just tell you
22 that?
541
1 A No, I believe we submitted that a
2 copy of that to you.
3 Q Now, were you authorized by
4 Secretary of defense Cohen to submit that
5 letter to the New York Post?
6 A No.
7 Q This is something you did
8 personally, correct?
9 A Yes.
10 Q And you didn't discuss that letter
11 with Secretary of Defense Cohen, Mr. Tyrer,
12 or anyone else at the Pentagon?
13 A Not that I recall, although I could
14 well have told Tyrer I was going to respond
15 through my attorney.
16 Q But you don't know of any public or
17 nonpublic response by Secretary Cohen himself
18 to this article by Dick Morris?
19 A That is correct.
20 Q Now, question number 2, what did
21 you tell Secretary Cohen in preparation for
22 another television show in April of 1998,
542
1 have you already testified to that?
2 A Yes, I have.
3 Q Question number 5, what did you
4 tell Secretary Cohen about the Tripp matter
5 in preparation for another television
6 interview? Is there any other television
7 interview that we haven't identified here
8 today, or have you testified as to all of
9 them?
10 A I think I've testified to all of
11 them.
12 Q Do you want to take time and double
13 check that --
14 A Where are the -- do you have the
15 questions? There was an Evans and Novak
16 interview in April where I believe I gave him
17 basically the same advice, which is not to
18 answer the question but to say it's under
19 review by the IG. I believe you have a memo
20 to that that's in response to the subpoena.
21 Q How did you communicate with
22 Secretary Cohen such that you gave him that
543
1 advice? How was it done?
2 A That memo.
3 MR. KLAYMAN: Has this been
4 produced to Judicial Watch? We're not aware
5 of it.
6 MS. WEISMANN: My recollection is
7 that this was included as part of our initial
8 response to your first subpoena, and it's
9 another one in which our recollection is that
10 we successfully asserted the deliberative
11 process privilege that was upheld by the
12 court.
13 MR. KLAYMAN: Let's certify this.
14 We'll be moving for production of that.
15 BY MR. KLAYMAN:
16 Q Do you remember what was in that
17 memo, specifically?
18 A It was very similar to the other
19 memos where we basically talked about the
20 topics of the day, primarily base closings,
21 Iraq, and Kosovo and then at the very end
22 said you might get a Tripp question. If you
544
1 do, I recommend you say this is under
2 investigation by the IG and it's
3 inappropriate to discuss it.
4 Q Did you have any oral conversations
5 about that issue with Secretary Cohen?
6 A I do not recall that I did.
7 Q Did you have any conversations
8 after the interview with Secretary Cohen?
9 A No, the Tripp issue did not arise.
10 Q Are there any other TV or radio
11 interviews or any interviews of any nature
12 that you recollect having generated
13 discussions between you and Secretary Cohen
14 about Linda Tripp?
15 A No.
16 Q Question number 9, what did
17 Secretary Cohen do after you told the
18 Secretary that he should correct his
19 statement made on the television show that
20 mentioned only Bernath? Have you already
21 testified to that today?
22 A I have.
545
1 Q Is there anything else that you
2 haven't told us that would answer that
3 question?
4 A No.
5 Q Question number 10 --
6 MS. WEISMANN: Mr. Klayman, I'm
7 sorry to interrupt your questions. I just
8 want to correct the record going back to the
9 April 27 through 30. In reviewing what you
10 passed out as Exhibit 5 to the previous Bacon
11 deposition, I don't see it listed, so it
12 appears that it is not a document that we
13 have claimed deliberative process privilege,
14 the Evans and Novak interview. I just want
15 the record to be clear on that.
16 MR. KLAYMAN: Perhaps at the break
17 you can also tell us whether you did in fact
18 claim deliberative process privilege on those
19 two other memoranda.
20 MS. WEISMANN: They appear to be
21 listed here as those that we did, yes.
22 MR. KLAYMAN: Can you tell me where
546
1 they were listed, what numbers? Is that
2 Exhibit 6?
3 MS. WEISMANN: You have the
4 documents. I don't have them with me today.
5 MR. KLAYMAN: I just want to see if
6 they're the same ones.
7 MS. WEISMANN: I understand. We
8 can do that at a break.
9 BY MR. KLAYMAN:
10 Q Question number 10, after Bacon
11 told Secretary Cohen that he should correct
12 the misimpression that the Secretary gave the
13 public about Bernath's role in release of the
14 Tripp information did the Secretary say that
15 he should issue a correction?
16 A He did not.
17 Q Question number 11, what did
18 Bernath write in a memorandum shown to Bacon
19 and given to the Department of Defense press
20 duty officer regarding how the department's
21 press office should respond to questions
22 about Mayer's article?
547
1 A I believe that there were two
2 memos. The first memo said that an
3 allegation had arisen about how Linda Tripp
4 had answered questions on a security form and
5 that she had answered that she had not been
6 arrested, that I said that that -- we should
7 not issue that memo as guidance to the duty
8 officer. Instead, we should have guidance
9 that was similar to what the Secretary was
10 going to say on Sunday, and that was the
11 guidance that, if true, this is a serious
12 allegation, and the Department of Defense has
13 established procedures for looking into this
14 and will follow those procedures.
15 Q Are there any press guidelines at
16 the Pentagon never to make a statement that's
17 hypothetical about someone? Are there any
18 procedures at the Pentagon as to whether that
19 should be done in the press office?
20 A I'm not aware of such a guidance.
21 Q For instance, would you issue a
22 statement that, just using this as a
548
1 hypothetical, if person so and so had killed
2 someone else, then it's a serious matter? Is
3 there anything to that effect that you can or
4 can't do that as press secretary?
5 A I'm not aware that there is
6 guidance like that, no.
7 Q Your testimony that you just
8 provided, was that with regard to the two
9 memoranda or just one?
10 A I believe that there were two.
11 Q We don't know of these two
12 memoranda being produced. Were they with-
13 held as well?
14 MS. WEISMANN: I don't know which
15 they are. I mean, we've either produced or
16 claimed privilege and been upheld for every
17 document that's responsive to your two
18 subpoenas.
19 MR. KLAYMAN: Well, in all due
20 respect and without trying to be
21 argumentative, it seems that key memoranda
22 that deal with questions that he's to answer
549
1 have never been produced. I'm asking you to
2 tell us whether they have or they haven't. I
3 understand you're going to assert a privilege
4 on them, anyway, but we'd like to get some
5 kind of indication as to whether they were
6 produced.
7 MS. WEISMANN: I'd be happy to
8 discuss this off the record, the issue of
9 document production.
10 MR. KLAYMAN: Well, put it on the
11 record. We would like to get from you within
12 a reasonable period of time -- if you can do
13 it at the break, fine, if not, within a
14 reasonable period of time thereafter whether
15 documents we've identified here today have
16 ever been produced and whether any such claim
17 has been asserted on them and whether the
18 court has sustained any such claim. Because
19 we need to know whether we have everything,
20 whether we have the full deck of cards, to
21 ask Mr. Bernath questions that the court
22 ordered him to answer.
550
1 MS. WEISMANN: Let me make it clear
2 on the record that I have not interposed any
3 objection to your asking Mr. Bacon today any
4 questions with respect to those documents.
5 MR. KLAYMAN: Well, I think you can
6 understand, Ms. Weismann, it's always helpful
7 to have the actual documents themselves.
8 MR. MURPHY: Mr. Klayman, I think
9 that one of the documents, at least, the
10 guidance memo that was issued, it appeared as
11 Bates stamp number 76 in Exhibit No. 5, which
12 was marked May of '98 in Mr. Bacon's --
13 MS. WEISMANN: May of '99.
14 MR. MURPHY: No, May of '98, the
15 first deposition.
16 BY MR. KLAYMAN:
17 Q Well, let's see if Mr. Bacon can
18 identify that.
19 A Yes, I maybe should -- I don't know
20 -- this is certainly what Mr. Bernath showed
21 me.
22 Q But that's one memorandum, correct?
551
1 A Yes, and whether there was another
2 memorandum I don't know for a fact he said to
3 me this is what I propose we say, and I at
4 that point would have said to him -- whether
5 he said it to me or showed me something, I
6 would have said to him let's not say this.
7 Let's instead issue a statement that is
8 similar to this.
9 Q Well, you're referring to Bates
10 number 76, correct, at Exhibit 5 to your
11 first deposition on May 15, '98, correct?
12 A Correct.
13 Q Now, why was it that Mr. Bernath
14 was telling you and others to say it at the
15 Defense Department?
16 A I guess I don't understand that
17 question. Who said he was telling me what to
18 say?
19 Q Well, he's suggesting responses
20 here, isn't he?
21 A Well, as I pointed out to you, we
22 discussed the response, and this is the
552
1 response we came up with.
2 Q Who initiated the discussions of
3 what response to give?
4 A I don't know whether he did or I
5 did. I just can't recall.
6 Q At the time these discussions were
7 initiated, you were concerned about this
8 entire issue of releasing Tripp's
9 information, correct?
10 A Well, concerned in what way?
11 Q That you and Bernath had to get
12 your stories synchronized?
13 A I was concerned that whatever the
14 public affairs office put out over the week-
15 end was synchronized with what Secretary
16 Cohen was going to say on Sunday. I didn't
17 want the press guidance to differ from what
18 the Secretary was going to say.
19 Q Well, you and Bernath were
20 concerned and in fact you discussed that you
21 could be taking the blame for all of this,
22 and that's why you wanted to synchronize the
553
1 response?
2 A We did not discuss taking the blame
3 for this. That's a misreading of everything
4 I've said here. I never said that.
5 Q Did that ever cross your mind, that
6 you may be taking the blame for this?
7 A No, it did not at the time. Maybe
8 it should have but it did not.
9 Q Has it crossed your mind up to
10 today?
11 A Well, I'd have to be blind if it
12 hadn't crossed my mind, wouldn't I?
13 Q Has anyone ever told you from the
14 date of your last deposition to today that
15 you may be fired at the Pentagon?
16 A No.
17 Q No one's ever even raised the
18 issue?
19 A I'm the only person who has raised
20 the issue.
21 Q And who did you raise it with?
22 A We've testified to that already.
554
1 Q So you don't know whether there's a
2 second memorandum from Bernath?
3 A I do not. I recall a two-part
4 discussion.
5 Q So you think there are two
6 memoranda?
7 A There could be, but it could be
8 there's only one.
9 Q Next question, 12, does Bacon take
10 responsibility for Bernath's release of
11 Tripp's private information?
12 A I've answered that question but the
13 answer is again, to repeat, that Bernath and
14 I decided together to do this. We consulted
15 with no one else.
16 Q Is there one who's more culpable
17 than the other?
18 A I don't believe so.
19 MR. MURPHY: I object to the word
20 "culpable." Go ahead.
21 BY MR. KLAYMAN:
22 Q Number 13, did Bernath attain the
555
1 level of a political appointee?
2 A No.
3 Q And on what do you base your
4 response?
5 A Well, he's a member of the Senior
6 Executive Service, which is a job for civil
7 servants. He's a retired military officer
8 who became a civil servant in the general
9 schedule, GS, and moved to become an SES,
10 senior executive member of the Senior
11 Executive Service.
12 Q At your last deposition on May 15,
13 1998, you had already promoted him, correct?
14 A Well, he, I believe, was already a
15 member of the Senior Executive Service when
16 he worked as my principal deputy.
17 Q Has he received any other
18 promotions since that date?
19 A No.
20 Q Has he been demoted?
21 A No.
22 Q The actual question which was asked
556
1 on May 15, you can turn your attention to
2 page 182, at line 10: "Are you saying here
3 that Mr. Bernath has obtained a level which
4 is the equivalent of a political appointee"?
5 Is Mr. Bernath's position at the Pentagon the
6 equivalent of a political appointee in terms
7 of its grade and stature?
8 A Where is this?
9 Q Due to some inartful drafting, we
10 didn't get the exact question, but this
11 should be the question.
12 A What are you referring to? What
13 page, what line?
14 Q Page 182 of your first deposition,
15 line 10.
16 MR. MURPHY: I think it's 183.
17 THE WITNESS: You can see why I'm
18 confused.
19 BY MR. KLAYMAN:
20 Q Right. The actual question is,
21 "Are you saying that Mr. Bernath has obtained
22 a level which is the equivalent of a
557
1 political appointee?"
2 A No.
3 Q The question remains the same?
4 MR. MURPHY: The answer remains the
5 same.
6 THE WITNESS: The answer remains
7 the same.
8 BY MR. KLAYMAN:
9 Q The answer remains the same. Is
10 that correct?
11 A The answer is he's a member of the
12 Senior Executive Service, which is not a
13 political job.
14 Q However, you are aware that
15 Mr. Bernath was previously within the OSD/PA
16 organization and received a senior level
17 political appointment and then converted that
18 employment to a career civil service
19 position?
20 A Yes. As I told you, he's a retired
21 military officer who became a civil servant
22 and then during a period which was fully
558
1 disclosed in the last deposition or in
2 information you have went through a
3 transitional period under I think -- well,
4 Secretary Aspen was there -- and then became
5 a member of the Senior Executive Service.
6 Q But when he shifted over from
7 political appointee To Senior Executive
8 Service, that was not considered a demotion,
9 was it?
10 A I think it was a lateral move is my
11 -- it was a move to a permanent status.
12 Q So in terms of salary and status it
13 was the equivalent?
14 A I don't know what his salary was
15 before, I don't know what it was in 1998, and
16 I don't know what it is now.
17 Q You don't know if his salary has
18 been reduced, do you?
19 A I do not know.
20 Q And you don't know --
21 A I testified I believe that the
22 salary was increased when he moved to the
559
1 American Forces Information Service, but I
2 don't know what it is.
3 Q So, actually, his new position was
4 more than the equivalent of what he had had
5 as a political appointee before?
6 A I never thought of him as a
7 political appointee. I thought of him as a
8 retired military officer who became a civil
9 servant.
10 Q But in fact his salary had
11 increased over what he was making an a
12 political appointee?
13 A I don't know what his salary was
14 then. I don't know what it is now.
15 Q Were there any duties or
16 responsibilities taken away from him when he
17 shifted from political appointee to career
18 civil service?
19 A I don't know.
20 Q So Mr. Bernath effectively was a
21 political appointee who burrowed into the
22 civil service with your assistance?
560
1 MS. WEISMANN: I object to the form
2 of the question.
3 MR. MURPHY: Objection.
4 THE WITNESS: That question has
5 been asked and answered before, and the
6 answer is no.
7 MR. KLAYMAN: We can take a break
8 now. I think I've gone through preliminarily
9 the questions.
10 THE VIDEOGRAPHER: We're going off
11 video record at 12:48.
12 (Whereupon, at 12:48 p.m. a
13 luncheon recess was taken.)
14
15
16
17
18
19
20
21
22
561
1 A F T E R N O O N S E S S I O N
2 (1:37 p.m.)
3 THE VIDEOGRAPHER: We're back on
4 video record at 1:37.
5 EXAMINATION BY COUNSEL FOR PLAINTIFFS
6 CONTINUED
7 BY MR. KLAYMAN:
8 Q Mr. Bacon, I appreciate your
9 cooperation here and your apologies for
10 getting here a little bit late. I don't
11 care, just so your counsel doesn't claim that
12 I've kept you here too long.
13 A No, no, I take full responsibility.
14 MR. KLAYMAN: Not joint
15 responsibility? I want to give you what I'll
16 ask the court reporter to mark as Exhibit 9,
17 and see if I can ask you some questions about
18 this.
19 (Bacon Deposition Exhibit No. 9
20 was marked for identification.)
21 BY MR. KLAYMAN:
22 Q These are documents produced on
562
1 behalf of you by the government lawyers, and
2 they span Bates numbers 1000 through and
3 including 1015. The first document, Bates
4 numbers 1000 and 1001 and 1002 and 1003 and
5 1004 and 1005, all appear to be the same
6 letter or e-mail that was sent to William
7 Cohen by representative Bob Barr. If you'd
8 like an opportunity to review these, that
9 would be fine.
10 A No. I saw them this morning.
11 Q Did you see these letters or e-mail
12 on or about their date, the date on them, May
13 22, 1998?
14 A I did not.
15 Q Did you become aware of them at
16 some point in time?
17 A I did not.
18 Q When was the first time you became
19 aware of them?
20 A This morning.
21 Q These letters start off by saying,
22 "I write to request the immediate dismissal
563
1 of assistant secretary Kenneth H. Bacon."
2 Did you ever discuss your dismissal with
3 Secretary Cohen?
4 A Yes, I did.
5 Q Is there anything that you didn't
6 testify to previously that you discussed with
7 him?
8 A No, there is not. I should revise
9 that. I never discussed my dismissal. As I
10 said, I said to him that my job was to solve
11 problems for him, not to create them, and if
12 I was a liability I was prepared to step down
13 if he felt that was the best thing.
14 Q Let's turn to the document 1006
15 from you, Ken Bacon, to Bob Tyrer and Jim
16 Jones, and the "RE:" has been redacted. Did
17 you play any role in redacting what is listed
18 opposite?
19 A I did not.
20 Q Do you know what was redacted?
21 A No, I don't.
22 Q It appears that the rest of the
564
1 document is redacted and it goes into 1008.
2 There are small portions on 1007 and 1008.
3 Did you play any role in redacting
4 information from the second and third pages
5 of this October 27, 1998, memo?
6 A I did not.
7 Q You did write this memo, did you
8 not?
9 A Yes, I did.
10 Q And do you know what was redacted?
11 Can you tell today what was redacted?
12 A I cannot. I don't recall the rest
13 of the memo.
14 Q Based on the date, October 27,
15 1998, does that refresh your recollection as
16 to what you discussed in this memo?
17 A I suspect it discussed Iraq.
18 Q At the bottom of the second page,
19 1007, it says, "Today's Drudge Report says
20 that you may be called to testify before the
21 grand jury looking into the release by me and
22 Cliff Bernath of information about how Linda
565
1 Tripp answered a question about her arrest
2 record on a security form." I'm now reading
3 on to 1008. "The report says that, 'In sworn
4 testimony, Bacon has explained that he
5 authorized the file dump and that Cohen knew
6 all about it.' In fact, I said exactly the
7 opposite, that you knew nothing about it. My
8 lawyer has contacted Drudge to correct this.
9 As I've said before, I think the prospects
10 that you'll be asked to testify in this
11 matter are about nil. Based on everything I
12 can learn, this part of Starr's investigation
13 is over. For one thing, Starr's authority
14 does not cover misdemeanors, which a
15 violation of the Privacy Act would be. In
16 addition, I've argued that I did not violate
17 the Privacy Act."
18 You did write that, did you not?
19 A Yes, I did.
20 Q And this memorandum was sent
21 directly to Secretary Cohen, correct?
22 A Yes, it was.
566
1 Q And you discussed this memorandum
2 with Secretary Cohen?
3 A I don't believe I did.
4 Q But you're not sure?
5 A Well, I frequently send him memos
6 that I don't discuss with him. I send the
7 memos in lieu of discussions with him
8 typically and don't expect to have
9 discussions about the memos, but without
10 knowing what the beginning of this memo
11 covered, I can't tell you whether I discussed
12 any other part of this memo with him or not
13 but I did not discuss this. This paragraph
14 you just read I did not discuss with him.
15 Q In sending this memo to Secretary
16 Cohen you were trying to refresh Secretary
17 Cohen's memory about the correct facts of
18 this Tripp incident, correct?
19 A Well, I think I was reporting on
20 the facts as I see them in response to an
21 inaccurate Drudge Report. That's pretty
22 clear.
567
1 Q Now, it states in this memorandum,
2 "The report says that, 'In sworn testimony,
3 Bacon has explained that he authorized the
4 file dump and that Cohen knew all about it.'
5 In fact, I said exactly the opposite, that
6 you knew nothing about it." Now, you had
7 previously discussed it, I take it, with
8 Secretary Cohen that you had testified that
9 Secretary Cohen knew nothing about this?
10 A I don't believe I had discussed it
11 with Secretary Cohen. I believe this refers
12 to my grand jury testimony, but I can't be
13 100-percent sure. That seems to be the
14 context. And this must have been based on a
15 garbled report of my grand jury testimony.
16 Because in my grand jury testimony, which is
17 public, and I suspect you've read, I make it
18 very clear that Secretary Cohen knew very
19 little bit about this.
20 Q In that grand jury testimony did
21 they ask you about whether your
22 communications were extensive, as you had
568
1 documented in a writing that we discussed
2 this morning?
3 A Well, I made a comment in a press
4 conference, and I don't recall that they
5 asked me about that particular comment at the
6 press conference.
7 Q Now, what you were trying to do was
8 to give Secretary Cohen some information so
9 he wouldn't say anything that contradicted
10 you, correct?
11 MS. WEISMANN: Object to the form.
12 MR. MURPHY: You can answer.
13 THE WITNESS: That's not correct.
14 BY MR. KLAYMAN:
15 Q Why is that not correct?
16 A I'm basically reporting to him on a
17 legal situation here.
18 Q Is that part of your duties as
19 press secretary, to report on the legal
20 situation?
21 A It's part of my duties to report on
22 legal situations that are misrepresented in
569
1 the press, as this was.
2 Q You state, as I have said before,
3 "I think the prospects that you'll be asked
4 to testify in this matter are about nil."
5 When had you told Secretary Cohen that his
6 prospects of testifying on the Tripp matter
7 were about nil?
8 A At some point, and I don't remember
9 when, either he or Tyrer had expressed some
10 concern that they could be called before a
11 grant jury, and I said that I thought the
12 chances were about nil.
13 Q How did you come to that
14 conclusion?
15 A In talking to my esteemed counsel.
16 Q And what did he tell you?
17 MR. MURPHY: Objection. You don't
18 have to answer.
19 MR. KLAYMAN: He just waived it.
20 MR. MURPHY: No, he didn't.
21 THE WITNESS: I already --
22 MR. MURPHY: I advise you and
570
1 instruct you not to answer about any
2 communications that you had with me
3 concerning this subject, period.
4 MR. KLAYMAN: Certify it.
5 BY MR. KLAYMAN:
6 Q Did you get that information from
7 anywhere else?
8 A Not that I recall.
9 Q Did you get that information from
10 The White House?
11 A Of course not. I've told you many
12 times, Mr. Klayman, that I had never
13 discussed this issue with The White House.
14 Q Did you get that information from
15 lawyers for the Clintons?
16 A I don't believe I've ever had a
17 discussion with lawyers for the Clintons
18 about this issue.
19 Q Are you aware that your counsel
20 used to practice in the same law firm with
21 lawyers for the Clintons?
22 A I've read the newspapers, yes.
571
1 Q "Based on everything I can learn,
2 this part of Starr's investigation is largely
3 over." Where did you get that information?
4 A I got that from my discussion with
5 the U.S. Attorney, who interviewed me before
6 the grand jury.
7 Q Was that on the record or off the
8 record?
9 A I don't recall.
10 Q That U.S. Attorney, as you put it,
11 are you talking about one of Ken Starr's
12 prosecutors?
13 A Well, whoever it was that
14 questioned me, yes.
15 Q They told you that the Linda Tripp
16 matter was largely over?
17 A I deduced this from what I was
18 told, yes.
19 Q You were in fact trying to make
20 Secretary Cohen feel more secure about this
21 situation in this communication, correct?
22 MS. WEISMANN: Object to the form.
572
1 THE WITNESS: Do you have another
2 question?
3 BY MR. KLAYMAN:
4 Q That was your intention in
5 conveying this information?
6 A Do you have another question?
7 Q Yes, you can answer.
8 MR. MURPHY: You're allowed to
9 answer.
10 THE WITNESS: I was reporting to
11 him a series of events that included, one, an
12 inaccurate report on the Internet and, two,
13 my conclusions coming from the grand jury
14 appearance.
15 BY MR. KLAYMAN:
16 Q I understand that, but you were
17 also trying to make him feel more secure?
18 A Yes. He at one point had expressed
19 some concern that he might be dragged into
20 this with absolutely no reason, and so I was
21 trying to allay that concern.
22 Q When did he express that concern to
573
1 you?
2 A I don't recall. I said at some
3 point I had a discussion with either him or
4 Tyrer about this sometime in the fall
5 probably.
6 Q This is something that you've never
7 testified to before?
8 A That's true.
9 Q And I've asked you before to tell
10 me everything you discussed with him, and you
11 told me that you had. This is new, correct?
12 A You've never asked me about the
13 grand jury appearance before.
14 Q I asked you about all your
15 discussions with Cohen, correct?
16 A Yes, and I don't recall whether I
17 had a discussion with Cohen about this.
18 Q Well, you're saying --
19 A As I've said, I don't recall
20 whether I did. It was either with Cohen or
21 Tyrer, but at some point I became aware of
22 the fact, either from the discussion with him
574
1 or with Tyrer, that he had a concern about
2 this.
3 Q And what specifically was said?
4 A I don't recall.
5 Q Now, if you'd had the discussion
6 with Tyrer, you would have sent this
7 memorandum to Tyrer, correct?
8 A I did.
9 Q But this memorandum is addressed
10 specifically to Secretary Cohen directly,
11 correct?
12 A That's because the press report
13 concerned him directly.
14 Q And who is Jim Jones?
15 A He is Secretary Cohen's military
16 assistant.
17 Q And he works in that office with
18 Secretary Cohen?
19 A He does.
20 Q Did you ever discuss the whole
21 Tripp incident with Jim Jones?
22 A Not that I recall.
575
1 Q But you may have?
2 A I don't believe I ever did. I
3 suspect I sent this to him because the bulk
4 of the memo dealt with a military issue that
5 was probably Iraq, just judging from the time
6 of the memo, the date of the memo.
7 Q Now, it was based on that concern
8 that Secretary Cohen could be implicated that
9 he didn't tell the truth on Fox News Sunday,
10 correct?
11 MR. MURPHY: Objection.
12 THE WITNESS: No, that's not true
13 at all. I have no idea what his concern was.
14 I think he felt that Starr was launching a
15 jihad and at some point he could get dragged
16 into it.
17 BY MR. KLAYMAN:
18 Q He used the word "jihad"?
19 A He did not.
20 Q It was based on a concern that he,
21 as a high-level political appointee Secretary
22 of Defense, could be tainted with this
576
1 release of Linda Tripp's information,
2 correct?
3 MS. WEISMANN: I object to the
4 form.
5 THE WITNESS: I think that's a
6 completely baseless assumption that I can't
7 respond to it.
8 BY MR. KLAYMAN:
9 Q Where did you learn that Starr's
10 investigation was largely over?
11 A I testified to that already.
12 Q From Starr's prosecutor?
13 A I told you I deduced that from what
14 he told me.
15 Q And what specifically did he tell
16 you?
17 A I told you I don't recall.
18 Q Have you received a target or
19 subject letter from the Independent Counsel?
20 MS. WEISMANN: I think this goes
21 well beyond the scope of what the court has
22 authorized, this discovery.
577
1 MR. KLAYMAN: I'm trying to get the
2 foundation of his deduction.
3 MR. MURPHY: But you're already
4 beyond the scope of Judge Lamberth's order,
5 so I don't think you have to answer that.
6 MR. KLAYMAN: I'm responding to
7 documents that you provided. I'm questioning
8 him on documents you've provided.
9 MR. MURPHY: You've asked your
10 questions about the documents. I don't think
11 he has to tell you what letters he received
12 from Ken Starr, if any.
13 BY MR. KLAYMAN:
14 Q Well, let me ask it a different
15 way. Certify it. Is it your understanding
16 that your activities are still under
17 investigation by the Office of Independent
18 Counsel?
19 A No.
20 MS. WEISMANN: I object to that
21 question.
22 MR. MURPHY: You can answer that.
578
1 The answer was no?
2 MR. KLAYMAN: He did. He said no.
3 BY MR. KLAYMAN:
4 Q Then you state, "For one thing,
5 Starr's authority does not cover
6 misdemeanors." Where did you learn that?
7 MS. WEISMANN: I object to this
8 line of questioning, and let me state for the
9 record that it's our position simply because
10 you've served us with a subpoena does not
11 mean every document we've produced in
12 response to that subpoena is subject to this
13 deposition. This deposition is governed by
14 the March 31 order.
15 MR. KLAYMAN: I agree and I'm
16 asking about communications with Secretary
17 Cohen which is clearly in the 31st order.
18 Please don't confer with the
19 witness. If you want to cross after it's
20 over, that's fine.
21 MR. MURPHY: Was there a question
22 pending? I'm sorry.
579
1 BY MR. KLAYMAN:
2 Q The question pending was where did
3 you get the information that Starr's
4 authority does not cover misdemeanors? Did
5 that come from Starr?
6 MR. MURPHY: You can answer.
7 THE WITNESS: I think it comes from
8 his charter, doesn't it? It covers felonies.
9 BY MR. KLAYMAN:
10 Q Did anyone tell you that?
11 A Yes.
12 Q Who did?
13 MR. MURPHY: You can answer the
14 question without disclosing the subject any
15 further of the discussions that you had if it
16 involves discussions with your counsel.
17 THE WITNESS: It came from
18 discussions with my counsel, and I believe
19 this fact is reflected in some of the letters
20 that we provided that my counsel has sent to
21 various news organizations in 1998.
22 BY MR. KLAYMAN:
580
1 Q Then you state, "In addition, I've
2 argued that I did not violate the Privacy
3 Act." Why were you telling Secretary Cohen
4 that, so you could keep your job?
5 A No. Whether or not I keep my job
6 is up to him, and he'll make that decision on
7 his own.
8 Q Did you tell him that so he could
9 state that if asked?
10 A No. I don't think he's ever been
11 asked that.
12 Q So as a whole was this
13 communication with Secretary Cohen intended
14 to tell the Secretary don't worry, you won't
15 be held responsible for what Cliff Bernath
16 and I did?
17 MS. WEISMANN: Object to the form.
18 BY MR. KLAYMAN:
19 Q Is that what you're trying to
20 convey?
21 A Here's the memorandum. Here's the
22 first page. See that? This is the second
581
1 page. See that? This is the third page.
2 Whatever this memorandum was about, this was
3 a very small part. It was largely about
4 something else entirely.
5 The point of the memorandum was to
6 report on whatever that other topic was, and
7 I suspect it was Iraq, and this was an
8 afterthought to bring him up to date on the
9 press event where his name had been misused.
10 Q Well, you were in fact intending to
11 tell the Secretary what your understanding
12 was so he could keep his story straight with
13 yours, correct?
14 MR. MURPHY: Objection. You can
15 answer.
16 THE WITNESS: No, I was writing
17 this memo to inform him.
18 BY MR. KLAYMAN:
19 Q Did Secretary Cohen ever respond to
20 this memo?
21 A Not that I recall.
22 Q He may have? You just don't
582
1 remember?
2 A We've already gone over this. I've
3 told you that I send him many memos to which
4 he does not respond.
5 Q Turning to the next memorandum of
6 May 19, 1998, again from you, Ken Bacon, to
7 Secretary Cohen, this one dedicated
8 exclusively to Linda Tripp, copy to Bob
9 Tyrer, Judy Miller. Who's Judy Miller?
10 A She's the general counsel.
11 Q Of the Department of Defense?
12 A That's correct.
13 Q Were you asked to send this
14 memorandum by either Mr. Tyrer or Ms. Miller
15 or Secretary Cohen?
16 A No.
17 Q Did you do this on your own
18 initiative?
19 A As I've told you earlier, I did.
20 Q And you did this after you read
21 Dick Morris' column that you identified this
22 morning, correct?
583
1 A That is correct.
2 Q Now, you state in the second
3 paragraph, "The Morris column is very
4 troubling because it falsely accuses you,"
5 Secretary Cohen, "of lying"?
6 A That's not what it says.
7 Q Well, I'm adding the "Secretary
8 Cohen" part. You were talking to Secretary
9 Cohen, correct?
10 A Oh, yes, but I thought you were
11 reading from the sentence of the --
12 Q No. I'm just trying to identify it
13 for the video. "The Morris column is very
14 troubling because it falsely accuses you of
15 lying." What was it about the Morris' column
16 that accused Secretary Cohen of lying?
17 MR. MURPHY: Object. You can look
18 at the column yourself, Mr. Klayman.
19 MR. KLAYMAN: Based on his
20 understanding.
21 THE WITNESS: I don't have the
22 column before me.
584
1 BY MR. KLAYMAN:
2 Q What exhibit number is that?
3 MR. FITTON: I think it's 7.
4 MR. MURPHY: It's 8.
5 MS. WEISMANN: It's the attachment,
6 also.
7 THE WITNESS: First of all, "Cohen
8 lied." It accuses him of lying. A little
9 hard to dodge that. It's the whole second
10 paragraph, and that is not correct.
11 BY MR. KLAYMAN:
12 Q Anything else not correct?
13 A Well, I'd have to reread the whole
14 column, and I think that's the major issue.
15 Q What's the major issue?
16 A The major issue is that Secretary
17 Cohen did not lie.
18 Q And then you go on in this
19 memorandum to tell Secretary Cohen why he
20 didn't lie, correct?
21 A Right.
22 Q And in fact you're trying to coach
585
1 Secretary Cohen so he would know what to say
2 if asked, correct?
3 A No. I was trying to give some
4 background to the column leading up to the
5 letter I was recommending that he send.
6 Q You stated in the second paragraph,
7 last sentence, "In fact, I stated that I had
8 not informed you about the release of the
9 information before it happened or for several
10 weeks after it happened." Do you stand by
11 that statement?
12 A Yes.
13 Q Now, Secretary Cohen already knew
14 this set of facts, correct, before you wrote
15 this memorandum of May 19, 1998?
16 A Which set of facts?
17 Q What you just stated, "In fact, I
18 stated I had not informed you about the
19 release of the information before it happened
20 or for several weeks after it happened"?
21 A Right, and I'm not sure I had
22 informed him at this time, that is, by April
586
1 26. That's the relevant date here is April
2 26, the date of the appearance on the Fox
3 show.
4 Q But by May 19, 1998, you had told
5 Secretary Cohen, before you wrote this
6 memorandum, the facts that I just read to
7 you?
8 A Yes, that's what I've testified.
9 Q So, therefore, it was not necessary
10 for you to restate those facts to him in this
11 memorandum?
12 A Well, Mr. Klayman, one writes memos
13 in a number of different ways, but I was
14 reemphasizing a point that I'd made before.
15 Q So what you were trying to do was
16 make sure that Secretary Cohen remembered the
17 facts correctly?
18 A No, I was trying to set the context
19 for the letter that I recommend you send to
20 Mr. Morris.
21 Q In this memorandum, you are telling
22 the Secretary I don't think there's a need to
587
1 respond to Morris, correct?
2 A I said left to my own devices I
3 would not respond but that he might want to
4 respond.
5 Q So, therefore, it wasn't necessary
6 for you to give this information to Cohen
7 since in your view there should be no
8 response, anyway?
9 A That's not what I said, and I don't
10 think you've read this memo completely.
11 Q I have read it completely.
12 A And what does it say in the
13 penultimate paragraph on --
14 Q We'll get to that.
15 MR. MURPHY: Mr. Klayman's not
16 going to answer your questions, Mr. Bacon.
17 You have to answer his.
18 BY MR. KLAYMAN:
19 Q You then state in the third
20 paragraph, "Left to my own devices I would
21 not dignify Morris by responding to his
22 column even though it contains inaccurate
588
1 statements in almost every paragraph. If
2 asked about this at a briefing, I would say,
3 'Is that the same Dick Morris who gets a kick
4 out of sucking toes?' and move on." That's
5 your statement, correct?
6 A Yes.
7 Q Is that the kind of way you discuss
8 things with Secretary Cohen? Is it that
9 informal generally when you communicate with
10 him?
11 A I think it was an expression of my
12 anger about the column.
13 Q Did you ever tell Secretary Cohen
14 not to use that language? Is there anything
15 in writing to that effect?
16 A I never suggested that he use that
17 language. I said if asked about this in a
18 briefing I would say. I think you need to
19 read this.
20 Q Have you ever said that publicly?
21 A I have not.
22 Q Turning to the last page, you
589
1 state, "Morris gives such an inaccurate
2 account of my deposition on the release of
3 information that Tripp lied on a security
4 form that it is impossible to imagine that he
5 read what I said." Is that an accurate
6 statement?
7 A Yes. I'm sorry. I misspoke about
8 this. You're absolutely right. This is a
9 letter that I recommend that I send to defend
10 the Secretary, not to defend me. The
11 Secretary decided that I should not send this
12 letter.
13 Q How did he convey that to you?
14 A I don't think he conveyed it to me
15 directly. I think Judy Miller conveyed it to
16 me, the general counsel.
17 Q But Judy Miller told you that was
18 the Secretary's instruction, don't send the
19 letter?
20 A That is my recollection.
21 Q What else did she say?
22 MS. WEISMANN: I object at this
590
1 time.
2 MR. KLAYMAN: It's waived.
3 MS. WEISMANN: No, it's not and
4 it's my privilege to waive, the government's
5 privilege to waive, and not his.
6 MR. KLAYMAN: Certify it.
7 BY MR. KLAYMAN:
8 Q She told you not to send it because
9 it wasn't accurate, correct?
10 MS. WEISMANN: I object to the
11 question. Same privilege.
12 MR. KLAYMAN: Certify it.
13 THE WITNESS: She never questioned
14 the accuracy of the letter.
15 MR. KLAYMAN: Waived.
16 MR. MURPHY: The government is
17 taking the position that your conversations
18 with Ms. Miller are protected by the
19 attorney-client privilege, so you should not
20 discuss --
21 THE WITNESS: This allows him to
22 make outrageous statements on the record that
591
1 should not go unchallenged.
2 BY MR. KLAYMAN:
3 Q I'll show you what --
4 MR. MURPHY: Sometimes there's
5 little we can do about that.
6 MR. KLAYMAN: I'll show you what
7 I'll ask the court reporter to mark as
8 Exhibit 10.
9 (Bacon Deposition Exhibit No. 10
10 was marked for identification.)
11 BY MR. KLAYMAN:
12 Q This is a document produced by your
13 counsel today in response to the subpoena
14 which is Exhibit 1 requiring your attendance
15 on May 24, 1999. It's a letter which your
16 counsel wrote to Matt Drudge of the Drudge
17 Report dated October 28, 1998, two pages.
18 Have you ever seen this document before?
19 A Yes, I have.
20 Q Did you see it before it was sent
21 by your counsel?
22 A I saw a draft.
592
1 Q I'm sorry. I didn't hear you.
2 A I saw a draft.
3 Q Did you write this?
4 A I did not.
5 Q The first draft?
6 A I did not.
7 Q It says in paragraph 2, "In a
8 deposition given in one of Larry Klayman's
9 many suits against the Clinton
10 Administration, Mr. Bacon testified very
11 clearly that Secretary Cohen did not know
12 about Mr. Bacon's involvement in the release
13 of the Tripp information until after the
14 Secretary responded the reporter's suggestion
15 that Clifford Bernath release the
16 information." Is that accurate?
17 A Yes.
18 Q "Mr. Klayman posts his deposition
19 on the Internet (www.judicial watch.org)
20 where they are readily available to
21 technophiles such as yourself. I suggest you
22 read pages 355 and 356 of Mr. Bacon's
593
1 deposition." Did you give that information
2 to your counsel?
3 A No.
4 Q Then it says, "Mr. Bacon was not
5 questioned at all about Secretary Cohen's
6 knowledge of the release of information
7 concerning Ms. Tripp before the federal grand
8 jury in Alexandria, Virginia." Are you
9 referring to the Starr grand jury, Judge
10 Starr's?
11 A Yes.
12 Q Is that an accurate statement?
13 A I believe so, yes.
14 Q So you were never questioned by
15 Kenneth Starr about the issue of whether
16 Secretary Cohen had knowledge of the release
17 of information from Ms. Tripp's files?
18 A That is correct.
19 Q Have you ever been questioned about
20 that by the inspector general of the Defense
21 Department?
22 MS. WEISMANN: I'm going to object
594
1 to that question and instruct him not to
2 answer.
3 MR. MURPHY: Don't answer.
4 MR. KLAYMAN: Certify it.
5 I'll show you what I'll ask the
6 court reporter to mark as Exhibit 11.
7 (Bacon Deposition Exhibit No. 11
8 was marked for identification.)
9 BY MR. KLAYMAN:
10 Q Mr. Bacon, this is a document which
11 you produced through your personal counsel
12 this morning. It consists of a cover letter
13 of May 28, 1998, addressed to special agent
14 Patrick Fallon, law offices of Murphy &
15 Shaffer, signed by your counsel, William J.
16 Murphy, two pages, and it attaches a
17 transcript of your testimony before the
18 inspector general, correct?
19 A Yes.
20 Q Is this the only time that you
21 testified under oath to the inspector
22 general?
595
1 A Yes, it is.
2 MR. KLAYMAN: Do you wish to
3 withdraw your objection?
4 MS. WEISMANN: My objection was
5 based on it's beyond the scope of what this
6 court has authorized. The court's order of
7 March 31 is very clear, and I think we all
8 agreed before we took the break that you had
9 finished your questions based on what the
10 court had ordered. I think this goes beyond
11 the subject matter that the court very
12 specifically laid out in its March 31 order,
13 so no, I do not withdraw my objection.
14 MR. KLAYMAN: We'll certify it, but
15 this was produced in conjunction with this
16 deposition, and we all knew what the
17 questions were going to be.
18 MS. WEISMANN: Mr. Klayman, I made
19 my position earlier --
20 MR. KLAYMAN: Can I finish?
21 MS. WEISMANN: I'm sorry. I
22 thought you had.
596
1 MR. KLAYMAN: And this is testimony
2 which relates to testimony this morning. I
3 just want to confirm that the corrections
4 made on this testimony are your own,
5 Mr. Bacon. I see that on the transcript
6 there are certain corrections here?
7 MR. MURPHY: Mr. Klayman, I can
8 explain. Those are my corrections based on
9 my discussion with Mr. Bacon. There is
10 another copy of this document which we've
11 produced subsequently which is the version
12 which contains Mr. Bacon's own handwritten
13 notes, and that was in the other package of
14 materials.
15 MR. KLAYMAN: But is there anything
16 in here, Mr. Murphy, that you've written that
17 you put in on your own without the direction
18 of your client?
19 MR. MURPHY: No, I think they're
20 identical.
21 MR. KLAYMAN: So it's your
22 handwriting that's in here?
597
1 MR. MURPHY: My handwriting is on
2 this version.
3 BY MR. KLAYMAN:
4 Q After we go beyond this transcript
5 with Mr. Murphy's handwriting, there is a
6 letter of May 22, 1998 to Mr. Ken Chandler,
7 editor of the New York Post, and Jan F.
8 Constantine, senior Vice President of the
9 News Corporation, New York, New York, spans
10 Bates numbers 41 through 44 and in fact other
11 than the cover letter, which I identified for
12 Mr. Murphy with regard to the correspondence
13 with special agent Fallon, that spanned Bates
14 numbers 1 through 40, correct?
15 A Yes.
16 Q The letter which your counsel,
17 Mr. Murphy, wrote to Mr. Chandler and
18 Mr. Constantine, did you have an opportunity
19 to review that letter before it was sent?
20 A Yes, I did.
21 Q Is it accurate?
22 A To the best of my recollection.
598
1 I've not reviewed it at this time, but I'm
2 sure it's accurate.
3 Q Other than sending this letter, has
4 your counsel ever corresponded with
5 Mr. Morris directly?
6 A Not that I'm aware of.
7 Q Have you?
8 A Sorry?
9 Q Have you corresponded with
10 Mr. Morris?
11 A No.
12 Q Has anyone threatened a lawsuit
13 against Mr. Morris?
14 A Has anyone?
15 Q That you know of, based upon this
16 article that's being discussed in this letter
17 of May 22, 1998.
18 A No.
19 Q Did you ever get a response from
20 the New York Post to this letter?
21 A No.
22 Q Has anyone ever followed up to
599
1 demand a response?
2 A Not I.
3 Q Has any part of Mr. Morris' article
4 ever been retracted or corrected?
5 A Not that I'm aware of.
6 MR. KLAYMAN: I'll show you what
7 I'll ask the court reporter to mark as the
8 next exhibit, Exhibit 12.
9 (Bacon Deposition Exhibit No. 12
10 was marked for identification.)
11 BY MR. KLAYMAN:
12 Q Exhibit 12 consists of a cover
13 letter of July 13, 1998, to James M. Crane,
14 Esquire, Associate Independent Counsel,
15 regarding grand jury appearance of Kenneth H.
16 Bacon, signed by William Murphy, one page,
17 and behind that is a letter to yourself from
18 Donald M. Horstman, Director of Program
19 Integrity, Inspector General, Department of
20 Defense. That is Bates number 45. And
21 behind that is a transcript which goes up to
22 and including Bates number 85; is that
600
1 correct?
2 A That is correct.
3 Q And it is this transcript that
4 contains your notations rather than your
5 lawyer's notations of things that you believe
6 should have been corrected in the transcript,
7 correct?
8 A These are my notations.
9 Q Do those notations correspond with
10 what Mr. Murphy had written into his
11 transcript?
12 A I believe so, but I have not done a
13 side-by-side analysis since sometime last
14 year.
15 Q Do you remember at this time any
16 differences?
17 A I do not.
18 Q Let's turn to the letter which
19 follows that to Donald Horstman, Director of
20 Program Integrity, Office of Inspector
21 General, dated June 2, 1998. It is a letter
22 written by your counsel, Mr. Murphy. It goes
601
1 through and including from Bates number 86,
2 number 91.
3 Did you direct your counsel,
4 Mr. Murphy, to prepare and send this letter?
5 A Yes, I did.
6 Q Did you review the letter before it
7 was finalized and sent?
8 A Yes.
9 Q Is there anything in this letter
10 which is untrue or inaccurate?
11 A Not that I'm aware of.
12 Q And you did have an opportunity to
13 review the letter before it was sent?
14 A Yes, I did. Well, I reviewed a
15 draft.
16 Q Have you since seen the final
17 version that was actually sent?
18 A It's right here.
19 Q Before today?
20 A Yes.
21 Q And did you review it?
22 A I reviewed it last year.
602
1 Q And did you inform Mr. Murphy as to
2 whether you found inaccuracies in it?
3 A I did not.
4 Q You did not find inaccuracies?
5 A I did not inform him that I found
6 inaccuracies.
7 Q But you know of no inaccuracies?
8 A That is correct.
9 Q And turning to page 1, it says, "As
10 I understand it, both Mr. Bacon and
11 Mr. Bernath had some concerns over the
12 possibility that the information requested by
13 Ms. Mayer might implicate the Privacy Act."
14 That is correct, is it not?
15 A That is correct.
16 Q And in fact you had those concerns
17 from the very first moment that Jane Mayer
18 called you and asked you for the information
19 which was released?
20 MS. WEISMANN: I'm going to object
21 at this point. Again, I think this goes well
22 beyond the limited subject matter that the
603
1 court's order of March 31 authorized.
2 MR. MURPHY: It also rehashes
3 material that was covered at great length in
4 May of 1998.
5 MR. KLAYMAN: We never had this
6 document before.
7 MR. MURPHY: It's the same
8 question.
9 MS. WEISMANN: My objection stands.
10 MR. KLAYMAN: Are you instructing
11 him not to answer?
12 MR. MURPHY: You can answer.
13 THE WITNESS: I think I dealt with
14 this a year ago. I answered these questions
15 a year ago.
16 BY MR. KLAYMAN:
17 Q You have nothing more to add?
18 A I do not.
19 Q Did you approve before the letter
20 was sent the legal positions being taken by
21 your counsel in this letter?
22 A I approved everything in this
604
1 letter.
2 Q Is it your position that because
3 the information about Linda Tripp could have
4 been obtained from other sources other than
5 the Pentagon that therefore you and
6 Mr. Bernath did not violate the Privacy Act?
7 MR. MURPHY: Objection. I think
8 you're calling for him to give a legal
9 conclusion, and although Mr. Bacon authorized
10 the letter it's my letter, not his letter.
11 MR. KLAYMAN: Are you instructing
12 him not to answer that?
13 MR. MURPHY: Yes, I think on that
14 legal conclusion.
15 MR. KLAYMAN: Certify it.
16 BY MR. KLAYMAN:
17 Q This relates to a question that I
18 was intending to ask you this morning, but
19 let me ask it to you now on some of these
20 logs that Cliff Bernath produced in this
21 case. You've reviewed some of them, correct?
22 A Well, I reviewed what you showed me
605
1 this morning.
2 Q Right. There is a reference to
3 W.H.S. in caps. Does that stand for white
4 house security?
5 A No, it does not.
6 Q What does it stand for?
7 A Washington Headquarters Services.
8 Q What is that?
9 A That is a division of the Pentagon
10 that basically administers the Pentagon, the
11 Pentagon reservation, 283 acres of parking
12 areas, buildings, service buildings, et
13 cetera, and Washington Headquarters Services
14 is the organization that sort of runs that
15 operation on a day-to-day basis.
16 Q Do you have any information with
17 regard to a response that was made to
18 Congressman Mica?
19 A I do not.
20 Q You know that Congressman Mica did
21 request information about this Tripp
22 incident?
606
1 A I actually learned that, I believe,
2 for the first time today.
3 Q Have you ever seen documents that
4 state that there was a meeting with the
5 Secretary of Defense in an hour and that he
6 wished to have information about the Tripp
7 release as soon as possible?
8 A I have not seen that.
9 Q Are you aware of any such
10 information?
11 A No, I am not.
12 Q Are you aware of any instance where
13 Secretary Cohen's office, either he or
14 someone acting on his behalf or out of that
15 office, requested information quickly about
16 the Tripp matter?
17 A No.
18 Q For use at a meeting?
19 A No.
20 Q Referring to Bates numbers 93 of
21 this Exhibit 12 that I've just shown you, do
22 you see that?
607
1 A Yes.
2 Q And this is going to Mr. Horstman
3 of the inspector general. Did you see this
4 letter by Mr. Murphy before it was sent to
5 Mr. Horstman? It refers to a Washington
6 Times article?
7 A Yes, I did.
8 Q Did you authorize it?
9 A Yes, I did.
10 Q And looking behind that, Bates
11 numbers 94 and 95, a letter to Wesley Pruden
12 signed by your counsel on June 9, 1998, did
13 you have an opportunity to review that letter
14 before it was sent to Wesley Pruden?
15 A Yes, I did.
16 Q Did you approve those contents?
17 A Yes, I did.
18 Q Is there anything in it which is
19 inaccurate?
20 A No.
21 Q Bates numbers 96 and 97 are simply
22 another copy of this letter which is 94 and
608
1 95, correct?
2 MR. MURPHY: That's what it is.
3 BY MR. KLAYMAN:
4 Q And Bates number 98 is a letter
5 which was sent by your counsel to Mr. Bill
6 Sammon on June 11, 1998?
7 A Yes.
8 Q Did you see a copy of before it was
9 sent?
10 A Yes, I did.
11 Q In that letter it states, "Let me
12 put this in words all of one syllable so you
13 can follow: 'No one gave Jane Mayer any
14 files on Linda Tripp.'" Is that your
15 language?
16 A No.
17 Q Whose language is that?
18 A Well, the letter's signed by
19 William J. Murphy. It's his language.
20 Q So you don't stand by that
21 statement?
22 A I do but it's not my language?
609
1 Q You don't speak in one syllable?
2 A Yes.
3 MR. MURPHY: Try him.
4 BY MR. KLAYMAN:
5 Q Did you approve writing an
6 insulting letter to Mr. Sammon?
7 MR. MURPHY: Objection.
8 BY MR. KLAYMAN:
9 Q You can respond.
10 MR. MURPHY: You can answer that.
11 THE WITNESS: I don't believe this
12 letter is insulting, if that's what you're
13 asking me. For a judgment of this letter, I
14 wouldn't apply "insulting" to this letter.
15 BY MR. KLAYMAN:
16 Q There's a memorandum of June 8,
17 1998, behind it, Bates numbers 100 through
18 1106. Did you ever see this memorandum
19 before?
20 A Yes, I did.
21 Q Is there anything in this
22 memorandum which is inaccurate?
610
1 A No.
2 Q Was this memorandum seen by you
3 before the letter was written to Donald
4 Horstman which appears first page at Bates
5 number 86?
6 A I can't recall whether it was or it
7 wasn't.
8 Q Do you have an opinion as to
9 whether this memorandum forms the basis of
10 the letter which appears at Bates number 86
11 and dated June 2, 1998, from Mr. Horstman to
12 Mr. Murphy?
13 MR. MURPHY: Just to correct the
14 letter, Mr. Klayman, I think the letter to
15 Mr. Horstman was an earlier version and that
16 the memorandum that appears at page 100 and
17 following is a subsequent shorter version of
18 the legal analysis but that was prepared
19 subsequently.
20 BY MR. KLAYMAN:
21 Q Now, turning to Bates number 104,
22 fax from Kenneth Bacon to Ms. Soler of Time
611
1 magazine, June 25, 1998, "I'm enclosing the
2 letter dated June 18, 1998, and attached
3 memorandum requested by Walter Isaacson --
4 MR. MURPHY: That fax is from me,
5 not from Mr. Bacon.
6 BY MR. KLAYMAN:
7 Q It's concerning Mr. Bacon. Who is
8 Walter Isaacson?
9 A He is an editor of Time magazine.
10 He may be the managing editor of Time
11 magazine.
12 Q And attached to that cover page of
13 the fax are documents 105 and 106 on Time
14 Magazine stationery dated June 26, 1998.
15 "Via facsimile John J. Connolly, Murphy &
16 Shaffer, Baltimore, Maryland. Is this the
17 same document, 105 and 106?
18 MR. MURPHY: No.
19 BY MR. KLAYMAN:
20 Q I take it not, correct?
21 MR. MURPHY: They're slightly
22 different.
612
1 BY MR. KLAYMAN:
2 Q What is this document, 105? What
3 is it you understand Time magazine was
4 communicating with your counsel about?
5 A Time magazine printed a
6 clarification of the story, and this is a
7 draft, if not the actual language, of the
8 clarification. I'd have to know which one.
9 It looks to me as if this is the first
10 version and they sent a second version on the
11 29th.
12 Q I take it it was with regard to a
13 story entitled "Starr's Fellow Traveler,"
14 June 22 edition of Time?
15 A Right.
16 Q Correct?
17 A Yes.
18 Q And in that article they were
19 talking about me and Judicial Watch and
20 matters relating to you and the Department of
21 Defense, correct?
22 A I don't recall the article.
613
1 Q Did you initiate the communication
2 with Time magazine that gave rise to this
3 clarification?
4 A I can't recall whether I did or my
5 attorney did.
6 MR. MURPHY: I think it's page 99.
7 MS. WEISMANN: I'm missing that.
8 There's no 99.
9 MR. KLAYMAN: There's no 99. Good
10 point. We don't have a 99.
11 MR. MURPHY: The original exhibit
12 has a 99.
13 MR. KLAYMAN: Maybe we can make a
14 copy and insert it.
15 THE WITNESS: It's a letter to the
16 editor of the magazine who wrote a letter
17 about you in Time.
18 MR. KLAYMAN: Can I see that and
19 we'll get a copy and attach it to this
20 exhibit? We'll take a two-minute break.
21 THE VIDEOGRAPHER: We're going off
22 video record at 2:27.
614
1 (Recess)
2 THE VIDEOGRAPHER: We're back on
3 video record at 2:29.
4 BY MR. KLAYMAN:
5 Q Bates number 99, which was left
6 out, did you see that letter before it was
7 sent to Time magazine?
8 A Yes.
9 Q June 18, 1998?
10 A Yes.
11 Q Is it accurate?
12 A Yes.
13 Q And did Time magazine ultimately
14 print the clarification set forth at Bates
15 number 105?
16 A I believe so. I think they may
17 have -- if they did print a clarification,
18 I'd have to compare exactly what they
19 printed, but if they printed -- the one they
20 printed is more likely to be 106 rather than
21 105.
22 Q But you're not sure?
615
1 A Well, I'm quite sure that they
2 printed a clarification and that they would
3 have printed the later one rather than the
4 earlier one, but maybe they made a change
5 beyond this.
6 Q Did you ever have any conversations
7 with persons at Time magazine about any
8 matter related to that article?
9 A No.
10 Q "Starr's Fellow Traveler"?
11 A No.
12 Q Did you ever have any conversations
13 with anyone at Time concerning the release of
14 Tripp's information generally?
15 A I did not.
16 Q This morning I was going to ask all
17 the questions before we took a break, and I
18 inadvertently did not ask four, but we may
19 have covered much of that this morning.
20 A Question four?
21 Q No, I didn't ask four questions
22 this morning.
616
1 MR. MURPHY: I think we've covered
2 this.
3 MR. KLAYMAN: We may have, but none
4 of our crack team of lawyers here picked up
5 on that. So we'll discuss that later.
6 THE WITNESS: I want you to feel
7 completely satisfied, so why don't you run
8 through the four questions you don't think
9 you asked, and we'll try to dispose of them
10 quickly.
11 BY MR. KLAYMAN:
12 Q Number 17, why was Bernath's
13 involvement revealed when according to Bacon
14 it is not necessary to give the public all
15 the facts now because the Department of
16 Defense's inspector general is still
17 investigating the release?
18 A First you have to go back to the
19 question that was asked. We're talking about
20 April 26, the Fox News program, in 1998. He
21 was asked a specific question. It was
22 Clifford Bernath, wasn't it, I believe was
617
1 the question, and he responded yes. My
2 advice to him had been not to answer any
3 questions about this, to say only that the IG
4 was investigating it and that when the IG
5 investigation was complete would be the
6 appropriate time to discuss it. That was my
7 advice to him and continues to be my advice
8 to him, as it is every time we have an IG
9 investigation that's looking into the facts
10 of the case.
11 Q Well, has he said to you any time
12 since the date of your last deposition, Ken,
13 is it time now to start talking about this,
14 anything to that effect?
15 A No. The IG investigation is not
16 complete, as far as I know?
17 Q Do you know when it will be
18 complete?
19 A I do not.
20 Q Has anyone told you that?
21 A No.
22 Q Number 18, what did Bacon say to
618
1 Secretary Cohen's chief of staff about the
2 Secretary's statement to the public that only
3 mentioned Bernath as being responsible for
4 the release?
5 A I think we've covered that.
6 Q Was there anything else that was
7 discussed that you have not testified to?
8 A Not that I recall, no.
9 Q Number 19, did Bacon discuss his
10 involvement in the Tripp release with
11 Mr. Tyrer, Secretary Cohen's chief of staff,
12 before Secretary Cohen made his statement on
13 Fox News Sunday?
14 A We already discussed the
15 conversation I had with Mr. Tyrer in March,
16 and that would have been, I believe, the only
17 conversation I had with him on the specifics.
18 There could have been another one between
19 March 18 and April 26, but I don't have any
20 recollection of it. I'm not ruling out that
21 there was something, but I don't have any
22 recollection of it.
619
1 Q Nineteen, did Bacon discuss his
2 involvement in the Tripp release -- I think I
3 just read you that one.
4 A Yeah.
5 Q Twenty-one, did anyone discuss with
6 Bacon the likely result of the ongoing
7 investigations of the release of Ms. Tripp's
8 information?
9 A That is --
10 MR. MURPHY: Exclude from that your
11 personal legal counsel.
12 THE WITNESS: I have had no
13 discussions about the IG investigation beyond
14 what I've discussed with my attorney.
15 BY MR. KLAYMAN:
16 Q Is there any kind of discussion at
17 the Department of Defense with persons other
18 than your counsel where they have rendered an
19 opinion as to what that result's likely to
20 be?
21 A No.
22 Q Have you made inquiry in the last
620
1 several months since you've been deposed with
2 anyone other than your counsel as to when
3 that IG investigation will conclude?
4 A No.
5 Q Is that a consideration at the
6 Pentagon, that the IG investigation
7 concerning the Tripp release not conclude
8 during the war in Kosovo?
9 A I've never heard anybody bring that
10 up.
11 Q You're aware that the IG report was
12 initially due in July of 1998?
13 A I have no idea when it was due.
14 Q You knew it was due before today,
15 though, correct?
16 A If I had no idea when it was due, I
17 guess I didn't know it was due before today.
18 Q Have you made any contingency plans
19 for alternative employment in the event that
20 report is not favorable to you?
21 A I have not.
22 Q Do you know whether anyone else
621
1 has, such as Mr. Bernath?
2 A Made contingency plans for me?
3 Q For them.
4 A No, I have no idea.
5 Q My colleague, Mr. Fitton, reminds
6 me that with regard to question 18 it's his
7 recollection and it's also my recollection
8 that we didn't really get any testimony from
9 you about that question. We did have a
10 discussion about your conversation with
11 Mr. Tyrer, but this question specifically
12 asks what did Bacon say to Secretary Cohen's
13 chief of staff about the Secretary's
14 statement to the public that only mentioned
15 Bernath as being responsible for the release.
16 Did you ever discuss with Mr. Tyrer the fact
17 that Secretary Cohen only named Bernath as
18 the person responsible?
19 A At some point, yes, but I don't
20 recall when.
21 Q Can you give us a rough estimate?
22 A I cannot.
622
1 Q What was discussed?
2 A I really don't have much
3 recollection. I mean, all these
4 conversations sort of run together after a
5 while.
6 Q Did Tyrer ever express to you a
7 desire to have this corrected, Secretary
8 Cohen's statement corrected?
9 A Not that I recall.
10 MR. KLAYMAN: I have no further
11 questions. Thank you, Mr. Bacon.
12 (Whereupon, at 2:37 p.m., the
13 deposition of KENNETH BACON was
14 adjourned.)
15 * * * * *
16
17
18
19
20
21
22